COURSE SKELETON TOPICS:

Notice

Opportunity to be heard

Pleading

o Motion to dismiss

o Answer

o Amendment

Discovery

o Work product

o Attorney-client privilege

Settlement

Summary judgment

Voluntary dismissal

Dismissal with prejudice / Default

Right to Jury

Jury Selection

Control of jurys verdict

Finality

ADR

INTRODUCTION TO CIVIL PROCEDURE

Article III, 2 U.S. Constitution:

Supreme Court and lower federal courts have limited jurisdiction, one of which hear

cases between citizens of different states. If citizens from same state, case should be heard

in state court.

Jurisdiction how our legal system assigns disputes to judges

CASE: Capron v. Van Noorden

Crisp distinction between substance (who won on merits of the case) and procedure (the

ultimate outcome of the case)

Procedural rule can be deciding factor in the outcome of a case.

Perception of procedure as technicalities or petty details justified?

Broader Themes

What is procedure?

o The means by which our legal system assigns winners and losers, through a process

that should be fair, transparent and binding.

STAGES OF A CIVIL ACTION:

FILING

PLEADING + NOTICE

RESPONSE / MOTION TO DISMISS

DISCOVERY

SUMMARY JUDGMENT

TRIAL

APPEAL

FINALITY

Settlement looms over all of these stages.

Adversarial assumption shape American judicial procedures

o Disadvantage victory may not turn on true merits of case

o Advantages:

truer decision is reached as a result of contest directed by interested

parties

Parties are the ones principally interested in disputes resolution, so they

should shoulder the time and resource burdens

What is the test of a good system of procedure?

o Does a given procedure satisfy due process?

o Rule 1 Rules shall be construed to secure just, speedy and inexpensive

determination of every action

CB p. 3 just and efficient determination of legal controversies

o But what do we mean by justice?

Get to the truth?

Or less about outcome and more about whether the process of

getting there should be fair?

Accuracy Principle proceedings are structured to maximize chance of

achieving legally correct outcome in each proceeding

Participation Principle - proceedings are structured to maximize each

interested partys right to adequate participation

Conflict Resolution Model provide an impartial means to resolve

grievances an alternative to relation or forcible self-help

o There is often a tradeoff between justice/fairness and efficiency, and costs as

well as benefits to giving more or less procedure

Fairness Efficiency Legally correct outcomes Cost Parties are heard Depriving another party of

their opportunity to be heard Rights protected Time expended by court

system

Practical Themes Procedural rules are the product of choice, of institutional design

o Not fixed

o They change over time

Procedure comes from different sources of legal authority

o Federal courts v. state courts

o Judicial decisions, which arent codified law

Something as simple as tradition may have a legal effect

o Judicial discretion

o A certain procedure may apply in some cases and not in others

Be careful on exam cases where constitutionality of state law is attacked

(examples: Mullane, Fuentes, Connecticut v. Doehr)

Transsubstantivity

Notice

Fourteenth Amendment Due Process Clause

Nor shall any state deprive any person of life, liberty or property, without due process of

law.

o Fourteenth Amendment (states)

o Fifth Amendment (federal)

Values due process serves

o Dignity values concern for humiliation/loss of self-respect a person might suffer if

denied opportunity to litigation

o Participation values appreciation of litigation as one of the modes in which

people exert influence in the societal decisions they care about

o Deterrence values appreciation of litigation as mechanism for influencing or

constraining individual behavior in ways thought socially acceptable

o Effectuation values litigation as important means through which people are able

to have what they regard as rightfully theirs.

What values compete with these?

Posner goal of procedure: minimization of the sum of error and

direct costs

Costs of running litigation system tempers our view of how much

notice is required as a matter of the Due Process Clause?

CASE: Mullane v. Central Hanover

Fundamental requirement of due process

o notice of courts intention to adjudicate their rights

o opportunity to be heard

(which has little worth unless you have notice the matter is pending and

choose whether to contest)

Standard for proper notice (Process which is a mere gesture is not due process)

o Reasonably calculated to inform interested parties about what is happening

o Desirous of actually informing

o Afford reasonable amount of time to present objections

Does NOT say actual notice must happen. Just a reasonable attempt.

For missing or unknown beneficiaries, newspaper publication was

all you could do not unconstitutional. For beneficiaries whose

residence known, they should have been mailed. Personal service of

written notice not necessary too expensive; whole point of common

trust - its uneconomical to have a bunch of small claims

o Is court saying people with small claims entitled to less

services than those with big claims? Civil procedure is about

tradeoffs what do we gain or lose by giving more process?

Tension between different sources of legal authority

o Something that may be constitutionally sufficient may not be sufficient under the

Federal Rules

o State law violates Constitution

o Court vs. Congress holding targets NY banking law, when issue is broader. On what

basis does Court have to state rules more generally? Isnt Congress the body that

does that?

Problems with the reasonably calculated standard:

Specificity vs. Generality

o CASE: Greene v. Lindsey: Eviction notice by posting on a door cant have been

reasonable calculated when (1)Servicers knew the given conditions of this

environment (housing project, children or incoming tenants tear off) and (2)

Significant number of instances, reliance on posting fails to provide actual notice to

the tenants concerned

o HELD: Where there is a cheap and efficient way to increase the reliability of an

unreliable procedure, exclusive reliance on the unreliable procedure is a violation of

due process.

o Reasonably calculated means something different depending on the circumstances.

Eviction notice on a door is OK, but maybe eviction notice on a door in public

housing project is not OK.

o Is the better question how broad should we go?

What if, in a public housing project, tenants who get notices posted on their

doors receive the notice 90% of the timeis it reasonable to post the notice

then?

At what point do we assess reasonableness after the event or before the event?

o CASE: Jones v. Flowers: Even if letters were reasonably calculated to inform, failure

to follow up is unreasonable. Government sends notice by certified mail. Court: no

one desirous of actually informing would give up as the letters disappeared.

o Thomas dissent:

Due process doesnt require actual notice!!

NO natural end point each time it isnt clear notice has been received, State

will have to consider additional means better calculated to achieve notice.

This rule turns on speculative, newly required information

Should defendants special circumstances affect whether notice satisfied Due Process

Clause

o CASE: Covey v. Town of Somers: Notice of foreclosure mailed to insane person

without a guardian and residing in mental hospital doesnt satisfy due process

And should this be based on what the state actually knows or what the state is

reasonably charged with knowing?

o In Covey, would notice by mail have been sufficient if the town was unaware of

defendants disability?

What should be included in contents of notice?

o CASE: Aguchak v. Montgomery Ward Co: Summons violated due process because

it didnt inform the Aguchaks, who lived in a remote area in Alaska, that they could

appear by written pleading or that they had right to request change of venue.

Appearing in person would have imposed significant financial hardship.

-FRCP Rule 4 Service of Process

WHAT document is served to recipients?

4a Notice of summons

o Must name the court and parties; Be directed to defendant; State name/address of

plaintiffs attorney; State time within which defendant must appear and defend;

Notify that failure to appear and defend will result in default judgment against

defendant; Be signed by the clerk, bear the seal, etc.

4c - Must also give copy of complaint

WHO serves the summons?

4c Any person at least 18 years old who is not a party, or a US Marshal

WHEN must summons be served?

4m within 120 days after complaint is filed or court will dismiss action against defendant

without prejudice.

EXCEPTION: If plaintiff shows good cause for the failure, court must extend the time for

service for an appropriate period.

WHERE is summons served?

4e in courts of general jurisdiction in the state where district court is located

OR,

o Delivering a copy of summons + complaint to the individual personally

o Leaving it at individuals dwelling with someone of suitable age and discretion who

resides there

o Delivering copy to an agent authorized by appointment or by law to receive service

of process.

These all require ACTUAL NOTICE

WAIVING SERVICE a way to give notice other than by the rules of 4e

4d waiving service of the summons

o Required?

No, but 4(d)(1) says defendant has a duty to avoid unnecessary expenses of

serving the summons. Plaintiff requests for defendant to waive service of a

summons.

o Contents of a waiver

4(d)(1)(C) - Copy of the complaint; 2 copies of a waiver form, self-

addressed, prepaid envelope for returning the form

4(d)(1)(D) inform D of consequences of not waiving

o Form of a waiver

4(d)(1)(A) must be in writing and addressed to the individual defendant

4(d)(1)(B) must name the court where complaint filed

o Failure to waive

4(d)(2) If defendant fails to answer a request to waive service, without

good cause, court must impose on the defendant the cost:

Later incurred in making service

Reasonable expenses, including attorneys fees, of any motion

required to collect those service expenses.

Why might plaintiff not want to request waiver of service?

o 4(d)(3) defendant who returns waiver need not serve answer to the complaint

until 60 days after request sent.

P may bear extra expense of personal service to give defendant only 21 days,

instead of 60, to respond to complaint

This is how law allows parties to make strategic choices

FRCP 12(a) Time to Serve a Responsive Pleading

(1)(A) Defendant must answer

o (i) within 21 days after being served with summons and complaint

o (ii) if its waived service under 4(d), within 60 days after request for waiver was

sent.

(1)(B) Must serve answer to a counterclaim or crossclaim within 21 days after being

served with the pleading that states counterclaim or crossclaim

(2 and 3) United States Agencies or Officers within 60 days see rule for details

(4)(A) if court denies motion or postpones its disposition until trial, responsive pleading

must be served within 14 days after notice of the courts action.

(4)(B) if court grants motion for a more definite statement, responsive pleading must be

served within 14 days after the more definite statement is served

Opportunity to be Heard Due Process Clause requires that parties have notice and an opportunity to be heard before

government deprives of liberty or property.

o One common requirement: defendant must be informed of action (receive notice)

long enough before the time when she is required to respond to obtain counsel and

prepare defense.

CASES: Fuentes (1972); Mitchell (1974); Di-Chem (1975); Connecticut v. Doehr (1991)

Change in how courts frame the rule:

Fuentes: an almost absolute rule - must have prior hearing before any deprivation of

property

o Required:

Hearing must be provided (prior opportunity)

Hearing must provide a real test of ownership, test the probable validity of

the underlying claim against debtor (probable cause)

Hearing must be provided at a meaningful time when the deprivation of

property can still be prevented

o Purpose of constitutional right to be heard:

protects the individual from arbitrary encroachment to minimize

mistaken or unfair deprivations of property, a danger that is significant

when the state seizes simply on the basis of an application of a private party

o Responses to counterarguments

Deprivation was temporary

No damages for the mistaken deprivation can undo the fact that

arbitrary taking that was subject to the right of procedural due

process still happened

Fuentes lacked full legal title to stove

14th Amendments protection has been read broadly to protect any

significant property interest, not just safeguard rights to undisputed

ownership

Bond deters wholly unfounded applications for a writ

But still not a substitute for a prior hearing because they test no

more than strength of applicants belief in his own rights

o Only very special interest justifies postponing notice

Important governmental or public interest

Special need for very prompt action

Person initiating seizure is government official who has right to decide

Mitchell and Di-Chem: a case-by-case determination, no longer an absolute rule

o Vague allegations vs. specific allegations (not conclusory allegations of ownership

right, but grounds for writ clearly appear from specific facts)

o Whether bond required

o Whether no post-seizure hearing in which creditor would have to prove probable

cause is ever required vs. opportunity for immediate post-seizure hearing

o Whether clerk or judge assesses the affidavit

o Bargaining power/sophistication of the parties - Di-Chem: corporations deserve due

process too being without their bank account is just as irreparable a harm as

consumer without household items (Fuentes)

Merges into new standard in Doehr:

o Simply a set of factors to be weighed against one another

Consideration of the private interest

Risk of erroneous deprivation

Any government interest

And no presumption of hearing prior to seizure

Change in justices views?

o Justice White began with an absolute statement that evolved into a new framework

in Doehr. Lesson: Judges views become more subtle and refined over time. Changes

in judicial precedent are not just a matter of counting votes.

Key questions:

Fuentes is still good law - none of the cases explicitly overrule. But it was essentially

overruled. So when you have a fact pattern really similar to Fuentes, do you follow Doehr or

the earlier cases? Courts struggle here

Understand that modern day pleadings are reaction to the rules of 30 years ago, and those

rules were a reaction to the rules of 100, or 300 years ago.

So how much procedure do we really want? An open-ended question

DEFINING THE DISPUTE

Pleading

Pleading -

o Purpose determine what the legal issues in the case are

o NOT attempt to gather evidence for court

Historical Evolution of Pleading

Common Law Pleading

Goal narrow to a single issue

Filing - plaintiff files a complaint

Notice - copy of complaint sent to defendant to give

notice

Pleading - the first major stage of

litigation

System rife with complexity and technicality

o Success depends on technical skill of lawyer, not merits of underlying case.

o Strict pleading requirements

Many different forms of action

Cause of action tied to a particular writ, and you had to get the right

writ even getting the lawsuit started was complicated

Could not advance inconsistent or alternative allegations

o Trial by oath

Primitive the more people you have swearing youre telling the truth, the

better your chances of winning.

Common Law v. Equity

Two types of courts, distinguished by type of relief sought

o Common law compensatory damages

o Equity injunctive relief

Prerequisite if petitioner couldnt get remedy in the common law courts

Procedure in equity courts not necessarily more simply or streamlined, but

Could bring more than one issue

More liberal discovery rules, parties could do more to uncover facts

from the other side.

Chancellors had more discretion, more tailored to individual

Declaratory judgment court can declare the rights and other legal relations

of any party seeking such a declaration, whether or not further relief is or

could be sought.

Merger of law and equity into single court in 1800s, though courts still distinguished

between law cases and equity cases.

Code Pleading

Field Code of 1848 attempts to overcome problems of common law pleading

o Abolished multitudinous form of action, replaced with one form: the civil action

FRCP Rule 2

o Created rules for what complaint must plead

A statement of the facts constituting the cause of action

Identifies the cause of action

CASE: Gillespie v. Goodyear

NOTE:

o Difficulty for litigants in getting claims to comply with code pleading rules

o To what extent does procedural system hamper justice

Plaintiffs complaint found insufficient for not containing enough factual basis to which

court could apply the law

o Saying someone assaulted you or trespass is just reciting a legal conclusion

o Need to say what occurred, when and where, who did what, the relationships

between the parties, etc.,

But what counts as fact, what counts as conclusion?

o Plaintiff claimed D used threatening voice -- Does this reflect a judgment about the

meaning of an event (legal conclusion), or is it referring to mechanics of what

happened (fact)?

What is the goal of pleading?

o To give a concrete picture of what happened? To give the other party notice of what

action the defendant is being sued for? To give the court enough information to

declare the law upon the facts stated?

Modern Pleading

FRCP reaction to excessively technical nature of old common law regime

o Compare Field Code 159 with Rule 8(a)(2) Framers deliberately avoided

Facts

statement of the cause of action

Instead used showing that the pleader is entitled to relief

In construing pleadings, shouldnt be wrapped up in technicalities

BUT difficulty arises in distinguishing between fact and law

o Someone assaults you, and you say they used harsh language

At what point does that become a statement of fact or a statement of law?

Modern analogues to common laws required forms of response to complaint:

Concept Nature of Argument legal or factual?

At Common Law Today

Even if true, no legal right (You were mean to me, so Im suing for 1,000. Defendant: Even so, there is no legal remedy for being mean)

Legal Demurrer Motion to Dismiss for Failure to State a Claim

Not true Factual (denies based on the facts of the case, not the law involved)

Traverse Answer (denials)

True, but other facts say Ill win

Mixes law and facts (Introduces new facts, claims those facts are legally relevant and change the law that applies)

Confession and avoidance

Affirmative defense

o Key element of common law pleading defendant could only pick one type of

response, and if that failed, couldnt try the other two.

o Modern practice

Defendant can have motion to dismiss based on failure to state a claim, and

if that fails, can try again with either answer, affirmative defense or both

FRCP 1 Scope and Purpose

FRCP governs procedure in all civil actions in US district courts

Purpose of rules resolve civil actions in a just, speedy and inexpensive manner

FRCP 2 One Form of Action

There is one form of action the civil action

o Note used to be two courts common law and equity

FRCP 3 Commencing an Action

A civil action is commenced by filing a complaint with the court

FRCP 7 Pleadings Allowed; Form of Motions

7(a) Only these pleadings are allowed

o Complaint

o Answer to complaint

o Answer to designated counterclaim

o Answer to crossclaim

o Third-party complaint

o Answer to third-party complaint

o If court orders, reply to an answer

7(b) Request for court order has to be by motion. Motion must be (A) in writing, (B) state

with particularity the grounds for seeking order and (C) state the relief sought.

FRCP 8(a) Pleading Requirements

Pleading that contains a claim for relief must state:

o 8(a)(1): Short and plain statement of grounds for courts jurisdiction

o 8(a)(2): Short and plain statement of the claim showing that the pleader is

entitled to relief

o 8(a)(3): Demand for the relief sought, may include alternative or different types of

relief

FRCP 8(e) Pleadings must be construed so as to do justice

CASE: Dioguardi v. Durning (Judge Clark founding father of FRCP) Complaint is poorly

written and difficult to understand. Plaintiff is non-native English speaker, no attorney.

Defendant files 12(b)(6) motion for failure to state a claim. In general lower pleading

requirement for pro se litigants

o Not necessary for claim to state a cause of action, state legal argument, or be

unambiguous

o What IS required - Contain enough facts, which, if true, entitle litigant to his day in

court. Be clear enough that judge, after a careful reading, can construe the cause of

action from the language of the complaint.

Duty of district courts at pleading stage

o Cutting off cases that will lose anyway?

Evaluating whether the words in the complaint comply should be influenced

by concerns about cost of cases?

o Or try to decode a complaint?

Puts more pressure on judges

Has FRCP made it easier or harder to file a complaint?

o Is there a distinction between a cause of action and a statement to entitlement for

relief?

Cause of action has a certain name or words; ex. Breach of contract

Cause of action the factual circumstances creating the legal issue

for which someone is seeking relief

Statement is where, maybe, you dont have to say the name or words

But distinction not always clear

FRCP 12 Defenses and Objections

Response and Timing when to serve a responsive pleading

12(a)(1)(A) Defendant must answer

o (i) within 21 days after being served with summons and complaint

o (ii) if its waived service under 4(d), within 60 days after request for waiver was

sent.

12(a)(1)(B) Must serve answer to a counterclaim or crossclaim within 21 days after

being served with the pleading that states counterclaim or crossclaim4)(4

12(a)(2 and 3) United States Agencies or Officers within 60 days see rule for details

12(a)(4)(A) if court denies motion or postpones its disposition until trial, responsive

pleading must be served within 14 days after notice of the courts action.

12(a)(4)(B) if court grants motion for a more definite statement, responsive pleading

must be served within 14 days after the more definite statement is served

Defenses

12(b): How to present defenses.

o Every defense to a claim must be asserted in the responsive pleading. But you can

do the following defenses by motion:

o (1) lack of subject matter jurisdiction (never waived)

the constitution and statutes under which court operates must have

conferred on it the power to decide this type of case

o (2) lack of personal jurisdiction (can be waived by not mentioning)

jurisdiction over the persons involved in the suit, as opposed to jurisdiction

over the determinations of law and fact to be made in the case.

o (3) improper venue (can be waived)

o (4) insufficient process (can be waived)

Not dispositive: Court will ask you to do redo complaint if improper

o (5) insufficient service of process (can be waived)

Not dispositive: Court will require proper service before moving forward

o (6) failure to state claim upon which relief can be granted

o (7) see rule

12(c): Judgment on Pleadings

o After pleadings close but early enough not to delay trial, party may move for

judgment on pleadings alone

Note: Party moves to have court rule in his favor based on the pleadings

alone, without accepting evidence, like in cases where outcome of case

depends only on courts interpretation of the law.

12(d): When 12(b)(6) Turns Into SJ

o If rule 12c or 12b6 motion includes things outside pleadings & judge doesnt strike

them, then the motion is treated as Rule 56 Motion for Summary Judgment

o All parties have to be given a reasonable time to present all material pertinent to the

motion

12(e): Motion for More Definite Statement

o Only if the pleading if so vague or ambiguous that the party cant reasonably prepare

a response

o Has to be made before filing a responsive pleading and has to point out the defects

o If court orders a more definite statement and order not obeyed within 14 days,

court can strike pleading

12(f): Motion to Strike

o Court can strike insufficient defense or stuff thats redundant, immaterial,

impertinent or scandalous, either sua sponte or on a motion made by a party

o NOTE: Courts disfavor this motion because it can be used to harass or delay process

Waiving Motions

12(g): Joining motions

o 12(g)(1) Motion under this rule can be joined with any other motion allowed by

this rule

o 12(g)(2) you waive any motions that you do not join together that were available

to the party but omitted from earlier motion

NOTE: If you make pre-answer motion on one of the 12(b) defenses, you

have to include in that motion all defenses available to you. You cant raise

one of these defenses if you could have included it in a pre-answer motion.

12(h): Waiving and Preserving Certain Defenses

o 12(h)(1) Defenses that cant be raised again

Party waives any of the Rule 12(b)(2-5) defenses by failing to make it by

motion or by failing to include it in a responsive pleading or in an

amendment as allowed by 15(a)(1) as a matter of course

NOTE: Purpose procedural issues should be noticed early, and to

prevent piecemeal attacks.

o 12(h)(2) Defenses that can be raised at several different points

12(b)(6) motion, or failure to state a legal defense to a claim can be raised

(a) in any pleading allowed or ordered under Rule 7(a)

(b) by a motion under Rule 12(c)

(c) at trial

o 12(h)(3) Defenses that can be raised at any time

If court determines at any time that it lacks subject-matter jurisdiction,

court must dismiss action

NOTE: Subject-matter jurisdiction is something courts take really seriously

12(b)(6) Failure to State a Claim

Party can assert a defense by motion to a claim for relief in any pleading by asserting

failure to state a claim upon which relief can be granted

o NOTE: Two ways claim can be dismissed

Complaint doesnt state a claim for which there is legal relief. The act isnt a

violation of ones legal rights

Complaint fails to state one or more of the necessary components of the

claim. Ex. Fraud you need intent + the plaintiff has to have acted on and

tangibly gotten hurt by that info. In the plaintiffs complaint, P cant show

they suffered tangible damages as a result of acting on the allegedly

fraudulent information.

o NOTE: P who has case dismissed under 12(b)(6) motion is generally given a right to

amend his complaint under 15(a) if defect can be corrected. But if case is dismissed

with prejudice, would have to appeal. Distinction dismiss the complaint, and

dismissing the case (drastic measure; if the suit is dismissed, P can never bring the

case again. This is why courts give P the benefit of the doubt, and assume the facts

are true)

o Federal Rules want cases to be decided based on merits, so P should be given

opportunity cure defects in pleading, even when district judge doubts P will be able

to overcome defects

CASE: Conley v. Gibson

Complaint should not be dismissed for failure to state a claim unless it appears beyond

reasonable doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.

o NOTE: Literal reading doesnt make sense suggests that a complaint fails only it

has absolutely no set of facts. Contrary to popular perception, Conley complaint set

forth lots of facts (how many were fired; of those, how many black; how many

immediately rehired were white)

Form 11

Illustrates how much detail is needed to survive a motion to dismiss

On ____ date, at _____ place, defendant negligently drove vehicle against plaintiff

As a result, plaintiff was injured, lost wages, incurred ____ medical expenses

o Causation suggested as a result

o Specifies certain facts date, time, expenses incurred

o But negligently a fact or a legal conclusion?

Plausibility

Distinction between legal sufficiency and factual sufficiency is not that clear:

o Factual sufficiency Have you stated enough fact to give opposing party notice and

to plausibly state your claim?

But plausibly stating the claim involves legal issues

o Legal sufficiency Even if facts are true, was the act illegal?

CASE: Bell Atlantic v. Twombly

Courts view of pleading standard under Rule 8

o Plausible claim for relief based on well-pleaded facts

Need not have detailed facts

Can be allowed even if judge thinks facts are unlikely

But need more than neutral, and there needs to be reasonable expectation

that discovery will reveal evidence

o NOTE: What is a properly-pleaded fact?

o NOTE: Whats the line between plausible and probable?

Probable = more likely to be true than not

But more than neutral would be 51/49, a probability standard

o Pros and cons of plausibility standard:

Pro keep out groundless claims

Con keeps out people who have grounds but arent able to express that

sufficiently in their complaint.

Places more responsibility on the judge to make assessments

How competent is the judge to assess that probability? In our

adversarial system the judge is the party with the least information

And with difficult problemsex. How is judge to find out if theres

been collusion if the parties themselves dont even know?

Not enough:

o Recitation of the elements of the cause of action

o Naked assertions devoid of factual support

o Legal conclusions

o Parallel conduct consistent with an alternative explanation

Standard is a little lower because case is at pleading stage, not trial or

summary judgment, so parties havent had opportunity to gather evidence.

In terrorem effect

o Majority is worried D will be forced to settle groundless suit because theyd rather

not be forced to deal with immense costs of discovery

o Rebuttal: Case management an attentive judge who keeps tabs on the case will

prevent it from getting too far, and has lots of procedural tools. Justice Stevens,

dissenting, mentions:

Sanctions Rule 11: 11(c) authorized wide array of sanctions ifsuit is

presented for any improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of litigation.

Before discovery even begins - motion for a more definite statement 12(e)

Discovery case plans and other discovery controls

Rule 16(c)(1) pretrial conferences at which parties discuss

elimination of frivolous claims and defenses

Rule 16(c)(2) order amended pleadings

16(c)(6) control or schedule discovery

16(c)(12) judge may adopt special procedures in case with

complex issues, multiple parties, difficult legal questions

Summary judgment Rule 56

Costs of discovery

o NOTE: A possible reading of Twombly required level of pleading is dependent on

the cost of discovery should the pleading be upheld.

As the costs of discovery mount, the case for terminating litigation earlier in

the cycle becomes stronger

Early termination particularly appropriate when the plaintiff relies

on widely available public information that can be rebutted by other

widely available public evidence.

o Cost-shifting in discovery

American rule pay your own way

Should we make the requesting party pay?

What if D is large corporation? Maybe expense of discovery would

discourage P, because P will only ask for it if the P believes theres a lot to be

gained in damages. But seems unfair to P with legitimate claim to damages

that are smaller than expense of discovery.

o Neither Conley and Twombly were really about pleading

Conley about civil rights, and the fact that pleadings came up was

incidental to case.

Twombly more about COSTS, protecting certain types of parties and

litigation, and pleading was a way to do that.

Transsubstantivity plausibility standard for cases other than antitrust?

o Use of Rule 8(a)(2) suggests their holding is broader. Using the Rule, that falls under

Rule 1 the scope of rules apply to all civil actions

o Yet opinion also indicates antitrust cases are special due to immense costs of

discovery

Changes in courts or lawyers behavior?

o Commentators predicted lots more pleadings, cases dismissed. Judges would be

more aggressive on complaints after Twombly

o Prof: No dramatic change, at least right away, in dismissal rates

o The idea plaintiff would try to be more specific

But werent they being as specific as they could all along?

Prof: When I was practicing, which was pre-Twombly, the

complaints looks more like the amended Twombly complaint (lots of

details, names, places, dates, facts) than like FRCP Form 11

Dissent

o Sua Sponte

Whether to retire language in Conley wasnt brought up by parties at all?

What are we gaining institutionally when courts take their own initiative to

change rules when it hasnt been brought up?

o Majority is undoing 70 years of FRCP specifically avoiding the battle from code

pleading era over what was factual conclusion vs. legal conclusion.

Arbitration a solution the majority didnt anticipate

o Arbitration agreements between large corporations and individual consumers

creates a venue where theres no use for the class action device (so, no way to

spread costs of litigating over large class of plaintiffs, and no award of damages to

big group of people)

CASE: Erickson v. Pardus

Right on the heels of Twombly, but just said all the complaint had to do was to give fair

notice to the defendant of what the claim is and the grounds on which it rests

o Pro se litigant federal prisoner

CASE: Ashcroft v. Iqbal

Two-part test

o Accept only factual, not conclusory allegations as true

o Once youve accepted the facts as true, factual allegations must present a

PLAUSIBLE claim for relief

Plausibility standard

o Where is the line between possible and plausible?

o Consistent with nondiscriminatory story, so not plausible

Twombly: if its 50/50, thats not good enough

o NOTE: Prof - Youre making a baseline assumption here, though, that when this sort

of fact pattern comes up, you believe one is more likely than the other.

o NOTE: Problem the 5% of discrimination cases that really are discrimination cases

on the merits they wont be able to make their case unless they have discovery

o NOTE: If youre Iqbal and dont have benefit of discovery, what more CAN you say

other than petitioners willfully and maliciously rounded up suspects?

What is gained and lost by the court, institutions, society, from taking this

approach?

Court does say that while Twombly expounded the pleading standard for all civil actions,

determination of whether a complaint states a plausible claim for relief will be a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.

Dissent:

o Majority misunderstood Twombly

o You do NOT ask whether the facts are plausible, but whether the facts, whether or

not theyre likely, present a plausible claim for relief.

You do not question the plausibility of factual allegations. Not whether facts

are implausible, but whether the claim is plausible

Reconciling Twombly and Iqbal maybe they werent about pleadings at all

o Both were exceptional cases

This was about 9/11

And to resolve uncertainty - Twombly majority wasnt that clear about how

far Twombly should go antitrust cases, or all?

CASE: Swanson v. Citibank

Tries to reinterpret plausibility standard, but not that helpful

o enough detail to present a story that holds together

Asymmetric discovery burdens

o Discovery is expensive, would compel D to settle even if P has no claim

o Posner dissent skeptical that case management can control asymmetric discovery

costs

Busy districts; magistrate judges err on permissive side because unsure

which claims district judge will want to hear down the road

Different pleading standards for complex v. simple, unexceptional cases?

o Majority complex cases might require more detail

o Higher standard with fraud cases? Rule 9(b)

Court goes easier on pro se litigants

o Swanson, DioGuardi, Erickson

Specificity and Consistency

FRCP 8d Be Concise; Alternative and Inconsistent Statements OK; Construe to Do

Justice

8(d)(1) each allegation must be simple, concise, direct; no technical form required

8(d)(2) party can make two or more claims or defenses; if any one of them is sufficient,

then the whole pleading is sufficient

o NOTE Why? Because Courts recognize that parties cant know exactly what

direction facts will go

8(d)(3) party can state as many claims or defenses it has, regardless of consistency

o NOTE does 8d put pressure on 8(a)

If claims are inconsistent, isnt one of them false and not plausible?

In real life plaintiff puts forth inconsistent claims, and then see which one

is right once they get through with discovery

FRCP 9b Fraud or Mistake (heightened pleading standard relative to Rule 8)

In alleging fraud or mistake, party must state with particularity the circumstances

constituting fraud or mistake.

o Malice, intent, knowledge, and other conditions of a persons mind may be alleged

generally.

o NOTE: But generally doesnt mean conclusory allegations still need to back up

with facts. Just means rules acknowledge that its difficult for individuals to be mind

readers in their pleadings.

CASE: Tellabs v. Makor

PSLRA (super heightened pleading standard) (statutory, not FRCP)

o Tries to curb strike suits

P tries to win settlement that is less than Ds legal costs

Costless to file; lacking in merit; able to extract lots of money from defendant

(corporate client; this is an issue thats difficult to uncover)

Strong inference standard (referring not to allegations but to scienter intent to defraud or

deceive)

o Facts must be particular

o Facts must give rise to strong inference

Court: Congress is unclear about what is a strong inference, so:

o Must accept all factual allegations as true (all pleading standards have this rule)

o Look at complaint in its entirety

Versus Swanson, where court distinguished between legally relevant facts

and extraneous facts and looked at certain facts in isolation

o Account for opposing allegations

And then do a comparative analysis is the claim at least as plausible as

opposing explanation?

FRCP 10 Form of Pleadings

10(a) Every pleading must contain caption and name all the parties

10(b) state claims or defenses in numbered paragraphs, each limited as far as practicable

to a single set of circumstances; if it promotes clarity, state each claim or defense (other

than a denial) founded on a separate transaction or occurrence must be stated in a separate

count or defense.

o NOTE: Alternative Allegations

Original common law rules designed to narrow pleadings to one issue

All courts now permit inconsistent allegations, if made in good faith

Separate statement requirement

10(b) no formal requirement, but as far as practicable, each

paragraph should be limited to a single set of circumstances

When party violates, appropriate motion compel separate

statements, or motion to strike. But party will be allowed to amend

pleading to conform to rules.

FRCP 11 Sanctions

11(a) signing

11(b) By presenting a pleading, motion or other paper to the court, the party is certifying

that:

o (1) its not presented for any improper purpose such as to harass, cause

unnecessary delay or needlessly increase cost of litigation

o (2) the claims, defenses and legal contentions are warranted by existing law.

Were not making frivolous arguments for changing or reversing existing law or

establish new law.

o (3) the factual contentions have evidentiary support, or will have support after

discovery

o (4) denials of factual contentions are supported by evidence, or are reasonably

based on belief or lack of information

NOTE: 11(b)(4) is for denials, not admissions!

11(c) Sanctions

o 11(c)(1) - If court determines 11(b) violated, then, after notice and reasonable

opportunity to respond, court can impose sanction. Law firms jointly responsible for

violation by employees

o 11(c)(2) Motion for sanction cant be filed if the improper claim, defense, paper is

withdrawn or corrected within 21 days after service or within another time the

court sets. If warranted, court MAY award reasonable expenses, incl. attorneys fees,

incurred to prevailing party in making the motion

o 11(c)(3) on its own initiative, court can order an attorney or party to show why

their conduct didnt violate 11(b)

NOTE: places limits on the creativity with which one can approach pleading, so that lawyers

dont just make up enough facts to survive a motion to dismiss in every case.

NOTE: Rule 11 does not apply to discovery. See 26(g)

NOTE: Sanctions are interlocutory in nature. Appealability?

Amendment & Relation Back

FRCP 15 Amended and Supplemental Pleadings

NOTE: The rules purpose is to provide maximum opportunity for each claim to be decided

on merits rather than on procedural technicalities

o So district courts are to take permissive approach to amendment requests, no

matter what their character may be

o Contrast to common law and code restriction that amendments couldnt change the

original cause of action

NOTE: Rule 15 reflects the fact that federal rules assign pleadings a limited role

o Provide notice of the nature of the pleaders claim or defense

o Provide notice of the occurrence or event thats being called into question

No longer carry burden of fact revelation and issue formulation

NOTE: Court will deny amendments when

o Legally insufficient claims - where the added claim fails to state the claim upon

which relief can be granted

o There is clear prejudice to opposing partys ability to defend its case

o In bad faith a strategic move to spring a new claim at the last minute, ex.

Waiting to add a claim until itll be difficult for opposing party to hire an

expert

o Whether party already had opportunities to amend and failed to add an available

claim or defense in the earlier amendment.

15(a) Amendments Before Trial

o Statute of limitations party has a certain time limit within which to bring a suit

Repose for defendant should be able to know that after a certain time they

wont be sued

We dont want P to sit on their rights; should bring suits in a prompt manner

15(a)(1) absolute right to one amendment to your pleading at any time

o (A) 21 days after serving the pleading

Used to be that you had right to amend only before being served with

responsive pleading. Amended in 2009 because the responsive pleading

may point out issues that the original pleader hadnt considered and

persuade the pleader that amendment is wise.

o (B) if its a pleading to which response required, 21 days after service of responsive

pleading OR 21 days after motion under 12 (b), (e), (f) is served

15(a)(2) in all other cases, party may amend its pleading only with opposing partys

consent OR the courts permission. The court should freely give leave when justice so

requires.

o NOTE: Wallace Hardware Co. v. Abrams p. 629

Delay alone is never a sufficient basis for denying leave to amend, no

matter how long the delay

Does this go too far? Even in cases where there is no prejudice to opposing

party, are there reasons for denying leave to amend at some point?

15(b) Amendments During and After Trial

15(b)(1) If party objects that evidence isnt within pleadings, court can permit pleadings

to be amended. Should permit when doing so will:

o aid in presenting the merits

o objecting party fails to establish they would be prejudiced

NOTE: Basically, automatic amendment of pleadings to conform with

evidence at trial. Parties may, with leave of court, amend pleadings to

conform to issues raised by unexpected evidence.

NOTE: Tactical dilemma for plaintiff in case where opposition tries to

introduce evidence at trial on an issue that clearly isnt within the pleadings

Object and try to keep evidence out

o Opponent will just request leave to amend

Failure to object

o This will be taken as implied consent to try the issue, thus

permitting an amendment to conform to the proof

o Failure to object raises second dilemma whether or not to

produce evidence on the point in question

15(b)(2) If issue not in pleadings is tried by parties express or implied consent, then

the issue must be treated as part of the pleadings

o Moore v Moore (not discussed in class; p. 627)

15(c) Relation Back of Amendments

(Basically treats filing date of amended complaint as if it were the date on which you filed the

original complaint)

15(c)(1) An amendment to a pleading relates back to the date of the original pleading

when:

o (A) the applicable statute of limitations allows relation back, OR

o (B) amendment asserts a claim/defense that arose out of the same

transaction/occurrence set out in the original pleading, OR

o (C) amendment changes the party against whom claim is asserted

15(c)(1)(B) must be satisfied (original transaction/occurrence)

Within the 4(m) (120 days) timeframe for serving the summons and

complaint:

(i) new party must have received notice of the original suit so that it

wont be prejudiced in defending itself on the merits

(ii) new party knew, or shouldve known, that if not for the mistake

in identity, the lawsuit would have been brought against them.

NOTE: High standard only applies to situations of honest mistake in

identity

Unknown identity is not mistaken identity

In most circuits, you cant file cases against Doe defendant, then find

out names and have it relate back later. This rule is meant to

encompass an honest mistake in identification by the plaintiff, not an

abject failure to name a party.

CASE: Goodman v. Praxair

o 2 competing policies

Simplicity we want to focus on merits, not have cases turning on

technicalities.

Repose defendant should have predictable repose from claims after a

specified amount of time has passed

How Court resolves freely permit amendment of pleadings and

their relation back so long as the policies of the statute of limitations

have been effectively served

o Doe cases interesting, because Doe defendants wouldnt have had notice.

So parties substituted for Doe defendants would be protected against being

added because they didnt have proper notice, or would be prejudiced

o Western Contracting Goodman court says defendants had same attorney, so

theres no way they couldnt have received notice.

Does this case incentivize parties to have separate attorneys so they can

avoid relation back?

15(d) Supplemental Pleadings

On motion and reasonable notice, court may permit party to serve supplemental pleading

setting out any occurrence that happened after the date of the pleading to be supplemented

May permit supplementation even though the original pleading is defective in stating a

claim or defense; may order opposing party to answer the supplemental pleading within a

specified time

NOTE: This is not granting leave to assert new claims, only lets party supplement existing

claims.

Answer / Responsive Pleadings

FRCP 8(b) Admissions and Denials

8(b)(1) in responding to pleading, party must state

o (A) short and plain, state defenses to each claim asserted against it

o (B) admit or deny allegations

8(b)(2) denial must fairly respond to substance

8(b)(3) can do general denial (deny all allegations, including jurisdiction) or specific

denial (designate specific allegations to be denied)

o NOTE: General denial is discouraged - not useful as a way to narrow the issues in

controversy.

o Still subject to constraints of Rule 11

o Use of general denial can be risky, since court may decide general denial doesnt

fairly respond to the substance of the allegation, and deem a general denial to have

admitted plaintiffs specific assertions.

8(b)(4) must admit part of allegation thats true and deny the rest

8(b)(5) if party lacks enough knowledge to form a belief about the truth of an allegation,

have to state that, and that has effect of a denial.

8(b)(6) if responsive pleading to an allegation is required, failing to deny = admit

o NOTE: Why not just deny every one? Makes the judge angry. Good litigators

understand when to concede, when to move on.

o NOTE: Improper forms of denial

Denial for lack of information 8(b)(5) allows party to deny if they lack

knowledge sufficient to form a belief about the truth, but there are limits.

Cannot deny for lack of information stuff that is presumptively, should be,

within your knowledge

Conjunctive denial: You did A, B and C

Cannot respond: I didnt do A, B and C because leaves open the

possibility that I didnt do C, but I did do A and B.

Negative pregnant denial: You denial is so ambiguous that it doesnt state to

what degree your answer diverges from the complaint

Ex. Plaintiff alleges defendant owes her 89,000. D denies he owes

plaintiff 89,000. Could mean you owe one cent less.

These technical decisions not common today. Modern procedure is

an order under FRCP12e for a more definite statement rather than a

dismissal

CASE: Beeck v. Aquaslide

o Now, talking about defendants pleadings

Rule 15(a) you can request leave to amend pleading an answer

o 3 rules in Beeck leave to amend will be given when

Doing so serves justice

No prejudice to the party opposing the amendment is shown

Trial court has shown abuse of discretion

o NOTE: Prejudice to defendant if they were forced to defend a slide they didnt make

But prejudice to plaintiff too, because plaintiff can never recover. Both

parties are prejudiced.

o Case highlights a tension in litigation

Outcomes of trial may not perfectly align with objective reality

o Procedural issue of whether you get to file an amendment seems so trivial

But ends up deciding the outcome of the case. Does Beeck have to pay for

crippling injury or not?

FRCP 8(c) Affirmative Defenses

8(c)(1)

o Accord and satisfaction agreement for alternative means of discharging debt

o Arbitration and award issue was already arbitrated

o Assumption of risk

o Contributory negligence

o Duress

o Estoppel alleging reliance on misleading representation of something and an

injury results from that reliance

o Failure of consideration deficient contractual performance that results in contract

being void

o Fraud misrepresentation which induces another to act to his detriment

o Illegality contract was illegal

o Injury by fellow servant

o Laches delay in pursuing claim, in a way that prejudices defendant

o License defendant had permission to commit the act

o Payment obligation satisfied by payment?

o Release liberation from duty (ex. Release form signed by plaintiff)

o Res judicata this has already been litigated

o Statute of frauds statute requiring that certain contracts need to be signed and in

writing

o Statute of limitations

o Waiver voluntary relinquishment of a right

8(c)(2) Mistaken Counterclaim Designation

o If party mistakenly designates a defense as a counterclaim or vice versa, court must,

if justice requires, treat the pleading as though it were correctly designated.

DISCOVERY For exam, think in general terms about how you would formulate a discovery plan

o Not just, we should take depositions

But ask of whom? Who should we depose?

Should we request a physical or mental examination?

What documents should we be concerned about requesting, and what will

be requested of us?

How can I argue that something is, or is not, protected? And protected by

what? A/c privilege and work product are two different things

Tension between wanting lawyers to be zealous client advocates and wanting to encourage

cooperation in discovery in order to promote just arbitration of issues

Theme: How broad should discovery be?

Rationales for discovery

o Preserve information that may not be available later

Ex. Aged or ill witness

o Identify/narrow the issues in dispute so case can be adjudicated more efficiently

Under common law, this task taken care of by pleading (narrow to single

issue). So no discovery in common law.

o Inform parties about what information the other side has

Why? To avoid trial by ambush

Arrive at more just conclusion

o Common law adjudication more about skill and cunning of

lawyer than the merits of the case, their ability to keep

secrets and spring surprises.

o If both parties have lots of information, lawyers build best

possible case for each side, arrive at just outcome

Defending trial by ambush

Less time for other side to prepare an elaborate lie

Are you more likely to get settlements beneficial to both parties in a regime

of trial by ambush or regime of broad discovery?

Ideally, broad discovery encourages settlement by educating the

parties about the strengths and weaknesses of their cases.

How do you define just settlement? One that reflects the relative

strength of evidence for each side? What if you have meritorious

claim but somewhat weak evidence?

What if the party with better evidence unfairly bullies the other

o Private attorneys general

American system process of enforcing legal regulations largely in hands of

private parties who enforce law by seeking civil remedies in court (ex.

Discrimination suits)

NOTE: Is civil discovery the right mechanism for transparency on the

workings of government?

Cost-effective?

Theres value to government keeping some information private. How

does this balance against our impulse to make discovery broad.

Discovery bad

o Massive costs

And discovery request is cheaper than finding out info yourself, so parties

have incentive to rack up costs on either side with unnecessary requests

o May exacerbate adversarial process gamesmanship; incentives to not answer

requests properly

o Judges arent involved in discovery perhaps violations go unpunished

NOTE: Discovery doesnt start until parties have had 26(f) and 16(b) conferences

Scope

FRCP 26(a)(1) Required Initial Disclosures

(A) Without waiting discovery request, must provide to other party

o (i) Names, contact info of all individuals with discoverable information that

disclosing party may use to supports its claims or defenses

o (ii) Copy of all documents disclosing party has in its possession or control which it

may use to support its claims or defenses

o (iii) computation of each category of damages claimed by disclosing party, and the

documents on which each computation is based, unless that info is privileged

o (iv) any insurance agreement under which an insurance company may be liable to

satisfy any part of a possible judgment

NOTE: FRCP adversarial discovery. No party obligated to help other side

o You provide information youre going to use to build your case. (info that disclosing

party may use to support its claims or defenses)

o But NOT required to provide information that could help other sides case. Does not

mean, however, you get to hide the information they just have to ask for it.

Discovery abuse:

Either party can do it each other

o Failure to cooperate

o Seeking unnecessary evidence

Does the adversary system provide incentives for discovery abuse?

o Hourly billing

o American rule for attorney compensation

o Contingency fee

NOTE: The possibility of settlement affects discovery practice

o Rigorous discover everything, disclose nothing strategy, spending that time and

money premised on assumption that trial is a realistic possibility

o But that strategy doesnt make sense in the possibility of early settlement.

(B) Exemptions from initial disclosures

o P. 61

(C) Time for Initial Disclosures - At or within 14 days of 26(f) conference, unless different

time by agreement or court order

(D) for parties joined or served later, 30 days after being served or joined

(E) unacceptable excuses for not making disclosures: (1) party didnt fully investigate the

case; (2) it believes other partys disclosures are not sufficient; (3) other party has not made

its disclosures.

FRCP 26(b)(1) Discovery Scope in General CRUX OF ALL THE DISCOVERY RULES

Any non-privileged matter relevant to any partys claim or defense

o Including any documents or materials and identity and location of individuals who

know of any discoverable mater

o NOTE: No court approval needed parties just do it themselves.

For good cause, court may order discovery of any matter relevant to subject matter involved

in the action

o NOTE: There is court involvement

Relevant info doesnt need to be admissible at trial if discovery appears reasonably

calculated to lead to the discovery of admissible evidence.

o NOTE: This means some evidence, though true, cant be admitted at trial

Ex. Hearsay is relevant but not admissible at trial. Can still be admissible at

discovery so long as its likely to lead you to other evidence that WILL be

admissible at trial.

All discovery subject to Rule 26(b)(2)(C)

o NOTE: Redundant to mention (all the rules are binding), but judges were ignoring

this rule

FRCP 26(b)(2) Discovery Limitations Frequency and Extent

(A) Court can alter limits on rules on number of depositions or interrogatories or on the

length of the depositions

o NOTE: This rule gives district courts lots of discretion. There are these limits, but

judge can use his judgment to decide that case needs more or less discovery.

(C) Court can limit discovery if:

o (i) unreasonably cumulative or duplicative, or can be obtained from some other

source that is more convenient, less burdensome or expensive

o (ii) party seeking discovery had ample time to obtain information by discovery in

the action

(You had your chance and blew it)

o (iii) If burden or expense of discovery outweighs the benefits.

NOTE: So even if material is nonprivileged and relevant, still cant be

discovered if

Unreasonably cumulative or duplicative, couldve been gotten it

somewhere else for cheaper, less burdensome

You had your chance and lost it

Benefit of discovery outweighed by burden or expense of discovery

NOTE: Court is making cost-benefit calculations

FRCP 26(c) Protective Orders

See p. 71

Court may issue, for good cause, to protect party from annoyance, embarrassment, undue

burden or expense

FRCP 26(e) Correcting or Supplementing Disclosures and Responses

26(e)(1) A party who made 26(a) disclosure or who responded to interrogatory, request

for production or request for admission has to supplement or correct its disclosure or

response

o (A) in a timely manner if the party learns the material is incomplete or incorrect

o (B) as ordered by court

26(e)(2) For expert whose report has to be disclosed under 26(a)(2)(B), party has duty to

supplement information included in report and information given during the experts

deposition

FRCP 26(f) Conference of the Parties; Planning for Discovery

26(f)(1) Must confer as soon as practicable, and at least 21 days before scheduling

conference or before 16(b) pre-trial conference

o NOTE: Goal get parties talking to each other so they work out disagreements

sooner rather than later.

o NOTE: Is there a way in which more communication between the sides leads to

dead end or to compromise? Prof both can be true

26(f)(2) Conference content

o Consider possibilities for settlement

o Arrange for disclosures

o Discuss any issues in preserving discoverable information

NOTE: Not explicit in rules, but parties are under general obligation to

preserve content, so that if other party asks, the information is still available.

o Develop proposed discovery plan

Parties jointly responsible for arranging conference, conducting it in good

faith and submitting proposed discovery plan to court within 14 days after

conference

26(f)(3) Discovery plan must state parties views and proposals on

o (B) subjects on which discovery needed, when discovery completed

o (D) any issues about claims of privilege or protection of trial-preparation

materials

o NOTE: The rule benefits courts. Parties do the work to figure out what will happen,

when and how, and court rubber stamps it. Arguably, parties should be doing this

anyway, because they know the issues better than the judge.

FRCP 16 Pretrial Conferences (skim)

16(a): Purpose establish schedule

16(b): Judge must issue scheduling order

16(d): Court required to issue order for any conference after a Rule 16 conference

o NOTE: This rule gives judges broad power in terms of case management. Judge

functions as a managerial fixer in the situation of pre-trial settlement. Somewhat of

a departure from the adversarial model.

In any action, court may order attorneys to appear for pretrial conferences

to expedite disposition of action, establish control so case isnt delayed due

to lack of management, discourage wasteful pretrial activities, improve

quality of trial through more thorough preparation, facilitate settlement

Matters for consideration at pretrial conference formulating and

simplifying issues, eliminating frivolous claims, amending the pleadings,

obtaining admissions, avoiding unnecessary proof and cumulative evidence,

determining appropriateness and timing of summary judgment, controlling

and scheduling discovery, etc. p. 42.

FRCP 26(g) Signing Disclosures and Discovery Requests

NOTE: Signing = attorney certifying its correct, that arguments made are consistent with

law, and doing it for good faith reason, not to harass opponent.

NOTE: Rule 11 equivalents for discovery

26(g)(1) Every disclosure/discovery request, response or objection must be signed by at

least one attorney. Signature certifies that, to the best of the attorneys knowledge,

o (A) with respect to a disclosure, its complete and correct at the time its made

o (B) with a discovery request, response, objection

(ii) not done for purpose of harassing, causing unnecessary delay or

needlessly increasing the cost of litigation

26(g)(2) Failure to sign other parties have no duty to act on an unsigned disclosure,

request, response, or objection until its signed.

26(g)(3) If certification violates this rule without substantial justification, court MUST

impose sanction. Can include having party pay reasonable expenses caused by violation,

including attorneys fees.

Discovery Devices

FRCP 30(a) Oral Depositions o Deposition = examination of witness pre-trial

Who attends

Attorney defending deponent (can interject with objections)

Deponent

. Deposing attorney

Court stenographer

30(a)(1) Party can depose any person by oral deposition, including a party, without leave

of court except as provided in FRCP 30(a)(2)

30(a)(2) Must obtain leave of court when

o (A) parties havent agreed to deposition and

(i) deposition would result in 10+ depositions being taken

(ii) deponent has already been deposed in the case

(iii) party seeks to take deposition before the time specified in Rule 26(d)

(before parties have had 26(f) conference)

NOTE: Attorneys have lots of power in deposition process

o Think back to private attorneys general idea

o Attorneys have power to summon someone and make them answer questions under

oath. Thats a lot of power.

FRCP 30(c) Examination & Cross-Examination

30(c)(1) examination and cross-exam proceeds as they would at trial under Federal Rules

of Evidence; put deponent under oath, testimony recorded by officer

30(c)(2) objections to the examination are noted on the record but the examination still

proceeds. Person may instruct deponent not to answer only when necessary to preserve a

privilege, etc.

30(c)(3) party may serve written questions in sealed envelope, which is delivered to

officer, record deponents answers verbatim

FRCP 30(d) Duration; Sanction; Motion to Terminate or Limit

30(d)(1) Deposition limited to 1 day of 7 hours. Court must allow additional time

consistent with Rule 26(b)(2) if needed to fairly examine deponent or if deponent impedes

or delays the examination

30(d)(2) Court may impose sanction (reasonable expenses and attorneys fees incurred

by any party) on person who impedes or delays fair examination of deponent

30(d)(3)

o (A) - Deponent or party can move to terminate deposition at any time on the ground

its being conducted in bad faith or in a manner that unreasonably annoys,

embarrasses or oppresses the deponent or party.

o (B) Court can order deposition be terminated or limit its scope

FRCP 31-32 (skim)

31 deposition by written questions (governed by many of the same requirements for oral

depositions)

32- all or part of deposition can be used against a party at hearing or trial so long as that

party had reasonable notice of the deposition or was present or represented at taking of

deposition and the deposition is used consistent with Fed Rules of Evidence

FRCP 33 Interrogatories

NOTE:

o Party sends opposing party list of questions

o Answering party must write down responses, including objections

o Answers have to be made under oath

o Limit of 25 questions

33(a)(1) Number

o No more than 25 written interrogatories served on another party.

o Court can grant leave to serve additional interrogatories consistent with Rule

26(b)(2)

33(a)(2) Scope

o Can relate to any matter that would be inquired into under 26(b)

o Can ask for opinion or contention relating to fact or application of law to fact

o But Court can order that interrogatory doesnt have to be answered until discovery

is complete

NOTE: Compare deposition and interrogatory

Deposition is about uncovering facts.

Interrogatory point is not just to uncover facts, but to get clarity on

the application of law to fact, to isolate the issues in dispute

o Ex. As part of your claim, are you contending my client was

negligent at this time?

NOTE: TIMING Courts have struggled with when is the better time to allow

parties to serve potential interrogatories on each other?

Beginning of discovery

o Could narrow the issues better, simplifying the case.

o Cost-effective parties only have to produce these certain

documents

After discovery

o May not know what the issues are or what my position will

be until I have discovery

o New facts come to light that change my opinion of the case.

33(b) Answers and Objections

o (1) Must be answered by party to whom directed

o (2) Responding party must serve answers and any objections within 30 days after

being served with interrogatory

o (3) Each interrogatory must be answered separately and fully in writing under

oath

o (4) Grounds for objecting to interrogatory must be stated with specificity

o (5) Person who makes answers must sign them

NOTE:

o 33(d) Business Records -- Cannot respond to interrogatory simply by saying, here

is where documents are, come and get it.

Have to specify the nature and organization of the records so other party can

locate and identify the records as readily as the responding party could

You can only use this option when the burden of extracting the information

is substantially the same for both parties.

And there are reasons why you dont want other people going through your

stuff see your notes on why copying and production is the norm.

NOTE: Rule 37 sanctions for failure to comply

NOTE: Most people wont say something incriminating, so interrogatory isnt so great on its

own. Interrogatory may be most effective in getting background information

names/addresses of witnesses, etc.

o Good use of interrogatory you want to depose whoever kept records of something,

but you dont know who that is. Use interrogatories against other side to learn who

has this information.

FRCP 34 Producing Documents

NOTE: The Rule is worded so that the scope of whats included is very broad.

34(a)

o (1) party may serve on any other party a request to produce, or permit requesting

party to inspect, copy, test

(A) - any designated documents or ESI

(B) any designated tangible things

NOTE: Non-party witnesses dont have to provide information. Only

way to force them to give testimony - subpoenaing for a deposition.

But then they would be annoyed and predisposed against the

deposing party

o (2) request permit entry onto designated land or property of responding party so

that requesting party can inspect, test any designated object

o NOTE: How come copying and production is the paradigm, not allowing opponent

inspection?

Dont want disruption to business of your office

Want to know what they saw, didnt see this is valuable information for

trial.

They may lose or tamper with originals

Dont want them to know certain info (trade secrets) or something which

they didnt ask for which could then be used against you.

o NOTE: Bad incentives

Document discovery is subject to abuse

Parties construe request too narrowly (as to make request meaningless)

Or parties construe request too broadly to hand over mountain of

documents needle in a haystack situation

34(b)

o (1) Contents of request

(A) describe each item to be inspected with reasonable particularity

(B) must specify reasonable place, time, manner for inspection

o (2)

(A) - Party to whom request is made must respond in writing within 30 days

of being served

(B) must permit or object to each request

(C) must point out specific part objected to, then permit rest

(E)(i) Party must produce documents as they are kept in the usual course

of business or must organize and label them to correspond to categories in

the request

34(c)

o Nonparties can be compelled to produce documents, other tangibles and to permit

inspection.

FRCP 35(a) Physical and Mental Examinations

(1) Court may order party whose physical or mental condition in controversy to submit to

examination by licensed examiner.

(2)

o (A) Order may be made only on motion for good cause and no notice to all parties

and person to be examined

o (B) must specify time, place, manner, conditions of examination, and person who

will perform it

Note

o Must have good cause because judges are wary of its intrusiveness

o The only one where prior approval by court is necessary

FRCP 36 Requests for Admission

36(a) Scope and Procedure

36(a)(1) Party can serve another party with a request to admit the truth of a matter

within scope of FRCP 26(b)(1) relating to:

o (A) facts, application of law to fact, or opinions about either

o (B) genuineness of any described documents

o NOTE: NOT limited to statements of fact

Party may ask for opposing partys admission of legal opinion, just like with

interrogatories.

36(a)(3) If no response to request within 30 days of being served, the matter is admitted

36(a)(4)

o If a matter is not admitted, answer needs to specifically deny it, or state in detail

why the answering party cant admit or deny it

NOTE: Need to admit, deny or explain why you can do neither. On exam, find

information from fact pattern to suggest whether party should admit, deny

or do neither.

o Must fairly respond to substance of the matter

o If denying only part of an answer, specify the party admitted and deny the rest

36(a)(5) Grounds for objection must be stated

36(a)(6) Motions for insufficient answer court may order that matter is admitted or

that amended answer be served

36(b) Effect of admission; Withdrawing and amending

Admission is established unless under Rule 16(e) court permits withdrawal or amendment

if it promotes presentation of the merits of action and doesnt prejudice the requesting

party

NOTE: An admission is only used as an admission for the purposes of the proceeding, and

not admission that can be used against the party in another proceeding.

o A party decides its not worth fighting over a certain issue, so admits it because

litigation is expensive. Opponent then games system. You admitted something in

case over 100 dollars, so Ill use what you admitted in a suit for 100 million dollars.

FRCP 26(a)(2) Disclosure of Expert Testimony

26(a)(2)(A) Party must disclose to other parties the identity of any witness it may use at

trial to present evidence

26(a)(2)(B) This disclosure accompanied by written report signed and prepared by

witness if witness is specifically employed to provide expert testimony. Report contains

o (i) complete statement of all opinions witness will express and the basis for them

o (ii) facts of data witness considered in forming his opinions

o (iii) any exhibits

o (iv) witness qualifications

o (v) list of all other cases where witness testified

o (vi) statement of compensation to be paid for study and testimony

26(a)(2)(C) Witnesses who dont provide written report

26(a)(2)(D) Must make these disclosures

o (i) at least 90 days before trial date

o (ii) if evidence is only for rebutting evidence on the same subject matter identified

by other party, then within 30 days after other partys disclosure.

FRCP 37 Failures to Make Disclosures or to Cooperate with Discovery; Sanctions

37(a) Motion to Compel or Disclose

37(a)(1) Party may move for order compelling disclosure or discovery. Motion must

show that movant attempted in good faith to confer with other party on discovery.

o NOTE: Before motion to compel, parties have to attempt to work it out on their own,

and need to show that to judge.

37(a)(2) Motion to compel must be made in appropriate court, where the action is

pending

37(a)(3) Specific motions

o (A) Compel disclosure if party fails to make disclosure required under 26(a)

o (B) Compel discovery response

(i) if deponent fails to answer question asked under Rule 30 or 31

(ii) - corporation or other entity fails to make designation under deposition

rules 30(b)(6) or 31(a)(4)

(iii) failure to answer interrogatory submitted under Rule 33

(iv) failure to respond to inspection request under Rule 34

37(a)(4) Evasive or incomplete disclosure = treated as failure to disclose or respond

37(a)(5) Payment of expenses done via winner/loser

o If motion granted, party whose conduct necessitated the motion must pay movants

reasonable expenses, including attorneys fees. Exceptions exist.

37(b) Failure to Comply with a Court Order

37(b)(1) Failure of deponent to answer question treated as contempt of court

37(b)(2) Sanctions

o (A) Court may issue the following orders

(i) The matters laid out in the discovery order are taken as winning claims

for the other party

(ii) prohibit disobedient party from supporting/opposing certain claims or

offenses or from introducing certain matters into evidence

(iii) striking pleadings in whole or in part

(iv) halting further proceedings until the order is obeyed

(v) dismissing action or proceeding in whole or in part

(vi) default judgment against disobedient party

(vii) treat failure to comply as contempt of court, except for order to

submit to mental or physical exam (Rule 35(a))

o (B) if fail to produce a person for medical or physical examination, court can order

any of the seven orders in 37(b)(2)(A)(i-vii)

o (C) in addition to sanctions above, court must order disobedient party to pay any

reasonable expenses, including attorneys fees caused by the disobedient partys

failure to comply

NOTE: Difference in when 37(a) and 37(b) arises

o Part A

You have to ask for something first, and demonstrate your good faith effort

to work something out.

You cant file motion to compel right away

o Part B

Penalties

If other side cant justify their noncompliance, that side has to pay attorneys

fees incurred in making motion.

NOTE: Why might this loser pays rule be appropriate here but not in other

sections of the Rules

37(c) Failure to Disclose, Supplement or Admit

(1) If party fails to provide information or identify witness as required under 26(a) and

26(e), they cant use that information or witness to supply evidence on a motion, at hearing,

or at trial, unless failure was justified or harmless. Additional sanctions can be applied

o (A) payment of reasonable expenses caused by the failure, including attorneys

fees

o (B) inform jury of partys failure

o (C) may impose other appropriate sanctions, including any of the seven sanctions

in 37(b)(2)(A)

(2) If party fails to admit whats requested under Rule 36, and requesting party later proves

the document was genuine or the matter was true, requesting party can move for that party

who failed to admit to pay for reasonable expenses, unless

o (A) request was objectionable under Rule 36(a)

o (B) admission was not important to case

o (C) - party had reasonable belief that they would prevail on the matter

o (D) other good reason to fail to admit

37(d) Failure to Attend Own Deposition, Serve Answers to Interrogatories, Respond to Request

for Inspection

(1)(A) Youre subject to standard Rule 37(b)(2)(A) sanctions if you

o (i) fail to appear for your own deposition

o (ii) fail to serve answers/objections/written response when served with

interrogatories, fail to respond to request for inspection

37(e) Failure to Participate in Framing Discovery Plan

If fail to participate in good faith in framing discovery plan as required by Rule 26(f), court

can, after giving opportunity to be heard, require that party or attorney to pay reasonable

expenses, including attorneys fees, caused by the failure

Exceptions to Discovery

FRCP 26(b)(3) Work-Product and Trial Preparation Materials

(A) Party cant discover documents and tangible things prepared in advance of litigation or

for trial by another party. Exceptions, subject to 26(b)(4)

o (i) Materials are otherwise discoverable under Rule 26(b)(1)

o (ii) party shows it has substantial need and cant otherwise acquire that material

without undue hardship

o NOTE: In anticipation of litigation heavily debated phrase

Not included

Documents prepared in regular course of business, for general

record-keeping purposes

Documents prepared to AVOID litigation

Document created for X purpose, later found to be useful to litigation

Documents created when neither party contemplated litigation

Its possible that materials can be drafted in preparation for litigation even if

no suit has been filed yet. If its clear the suit is imminent and the documents

are for use in the case, privilege will apply.

o NOTE: if opposing party shows substantial need, the work product may not be

shielded. Examples:

Witnesses arent available, lawyer might need to provide their account of

deposition testimony

CASE: Snead v. American Export (illustrates what circumstances are

enough to create a sufficient showing of necessity to overcome work-

product protection under 26(b)(3)

o Party A cant ask for Party Bs surveillance videotape. That is

not a substantial need, unless in those times where theres a

major discrepancy between what testimony the Party A will

give and what the film seems to portray

o But whenever a document or other item is to be introduced,

isnt there a need for discovery to see if the item has been

forged, distorted, altered?

o NOTE: Purposes

Efficiency: we want lawyers to put stuff in writing, which is necessary for

good, efficient lawyering

Client service

o NOTE: 26(b)(3) only partially codifies Hickman, since it protects only documents

and tangible things. But an attorney could always say they are relying the common

law protection of Hickman itself.

(B) if court orders discovery of these materials, must protect against disclosure of th