Civil Procedure II OutlineI. Discovery

←Three Purposes of discovery:

Permit the preservation of evidence that might be lost before trial Provide mechanisms for narrowing the issues in dispute between parties Permit parties to acquire greater information about their own and the other side’s case

← Discovery eliminates the element of surprise which leads to a more fair trial on the merits, instead of it being a contest of skill (and money)

Exchanging information leads to more likely settlement without the expense of trial← Civil discovery in the US is much more broad than in criminal cases and foreign civil cases

Judges have been reluctant to control discovery, but this is changing somewhat (more magistrate judges)

← Types of Discovery: Depositions (R. 30) Interrogatories (R. 33) Production of Documents (R. 34) Request for Mental and Physical Exams (R. 35) Request for Admissions (R.36)

← The Scope and Mechanics of Discovery Scope deals with the range of information that you can get as a mandatory requirement in litigation Mechanics = the various discovery devices (i.e., interrogatories, depositions, etc.) First ask whether information is within broad scope of 26(b)(1), then ask whether one of

the exceptions to discovery of relevant information applies Step 1 – General Discovery Standard under 26(b)(1) – Scope of Discovery

o Parties may obtain discovery regarding any non-privileged matter this is relevant to any party’s claim or defense—including the existence….of any documents or other tangible things and that the identity and location of persons who know of any discoverable manner. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence

Material must be non-privileged (see Privilege below—attorney/client, work product) Also non-testifying expert witnesses (see Experts below)

This rule was amended in 2000 to be more narrow. It says “relevant to party’s claim or defense”. It used to be just relevant to subject matter which now the court can extend to for good cause

Relevant to claims/defenses = anything relevant to the issues framed by the pleadings

Discoverable information relates to the party’s claims/defenses. Since this is more limited than “any relevant material”, the attorney may be more likely to plead multiple theories to discover more information

o Includes documents, anything that can be used as evidence/witnesseso Discovery doesn’t have to be admissible evidence! You can ask hearsay questions at a

deposition as a way to find out more information (like anyone else you may want to depose) Step 2 – Even if you qualify under 26(b)(1), other side can object under 26(b)(2)(C)

o Rule 26(b)(2)(C) LIMITS the scope of discoveryo Court must limit frequency or extent of discovery otherwise allowed if it determines that:

(i) Discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) Party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

i.e., party waited until end of discovery period to request a large amount of information

(iii) Burden or expense of the proposed discovery outweighs its likely benefit, considering (1) needs of the case, (2) amount in controversy, (3) parties' resources, (4) importance of the issues at stake in the action, (5) importance of the discovery in resolving the issues.

o (b)(3)-(5) – Other reasons for avoiding the discovery process (trial prep; materials and experts; privilege) – DISCUSSED BELOW

o Rule 37 – Motion to Compel Discovery when the other party won’t comply Step 3 – Protective Orders (26(c)) - Court can structure discovery to protect a party from

having to disclose something o (1) Party receiving discovery request (party, private person subpoenaed) may seek a protective

order from the court to protect discovery. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(a) Forbidding disclosure or discovery (b) Specifying terms, including time/place for disclosure/discovery (c) Court may prescribe different discovery methods (d) Court may forbid inquiry in certain matters or limit scope to certain matters (e) Designate who may be present when discovery is conducted

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(f) Require deposition be sealed and opened only upon court order (g) Require trade secret or other confidential information not be revealed or only

revealed in a specific way (h) Require parties to simultaneously file info in sealed envelopes, to be opened as the

court directs Other options: In camera review, redact files, sequence discovery (discovery of least

controversial stuff first)o (2) If motion for protective order is denied, court may order that person to permit/provide

discoveryo (3) Awarding expenses – See 37(a)(5)

Information could be non-discoverable because it’s privileged (attorney/client, etc.)!← What about existence of liability insurance? Is that discoverable?

No! Not relevant to claim/defense of party - Doesn’t qualify under 26(b)(1) If you mention “liability insurance” in a proceeding, it’s grounds for an immediate mistrial because it’s

considered prejudicial But, Rules say it’s discloseable in discovery under Rule 26(a)(1)(A)(iv) – you HAVE to disclose it off the

bato It affects settlement of the case if the plaintiff knows that o Plaintiff’s lawyer will demand policy limits

← What about discovering defendant’s total net worth? Privacy concerns! We don’t allow it to be discoverable Exception is in the area of punitive damages because net worth was relevant to size of the punitive

damage award, but SCOTUS is changing this← Notes – Marresse v. American Academy of Orthopedic Surgeons: doctors claim they have not been admitted to society of orthopedic surgeons in violation of anti-trust laws. To show the case, they want all the membership files. Could argue that this goes against the privacy of the members.

The lawyer for the organization could claim this evidence should stay out b/c it is just a strike suit- they will settle b/c they do not want to have to disclose this information. This seems like predatory discovery- they know this is private information and the other side is just trying to get us to settle.

Lawyer for the doctors: focus on the injury to the client. The organization is just trying to cover-up, be obstructive, stone-walling, this is diversion from the main course of the information.

Majority thinks this was precatory discovery – P was trying to force D into settlement by asking them to reveal sensitive/private information – therefore, protective order

←← REQUIRED DISCLOSURES ← Rule 26(a) – Required Disclosures

(1) Initial Disclosures

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(2) Disclosure of Expert Testimony [Experts] (3) Pretrial Disclosures [Managing a District Court Caseload] (4) Form of Disclosures [Managing a District Court Caseload]

← Rule 26(a)(1) – Required Initial Disclosures Party must disclose any information that it (1) may use in support of its claims or defenses; (2) unless

the information would be used solely for impeachment; (3) Also computation of damages; (4) Insurance agreement

Basically, you’ll get the basic information, but you still must use other tools of discovery (interrogatories, requests for documents, depositions) if you want to obtain information unfavorable to responding party

← (A) – Party must, without awaiting discovery request, provide to the other parties: (i) name, address, phone (if known) of anyone likely to have discoverable information that

disclosing party may use to support its claims/defenses, unless the use would be solely for impeachment

(ii) copy, or description by category and location – of all documents, ESI, and tangible thinks that disclosing party has in its possession or control and may use to support its claims/defenses, unless the use would be solely for impeachment

(iii) Computation of each category of damages claimed by the disclosing party – as well as documents on which each computation is based, unless its privileged or protected from disclosure

(iv) Insurance agreement under which an insurer may be liable to satisfy all/part of possible judgment

o Must be given up front because it can’t be asked for at trial (too prejudicial, grounds for mistrial)

← (B) – Proceedings exempt from initial disclosure (very specific, i.e. petition for habeas corpus, forfeiture action in rem arising from federal statute)← (C) Time for Initial Disclosures – In General

A party must make the initial disclosures at or within 14 days after the parties Rule 26(f) conference unless court decides otherwise or a party objects

← (D) Time for Initial Disclosure – For Parties Served/Joined Late Party joined or served AFTER the 26(f) conference must make the initial disclosures within 30 days of

being served or joined, unless court rules otherwise ← (E) Basis for Initial Disclosure; Unacceptable Excuses

Party must make its initial disclosures based on information then reasonable available to it. Party is not excused form making disclosures because it hasn’t fully investigated or because it

challenges sufficiency/absence of other party’s disclosures (just because they didn’t do it doesn’t mean you can’t!)

←← TYPES OF DISCOVERY ← 1. Depositions← 2. Interrogatories

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← 3. Production of Documents← 4. Request for Physical and Mental Exams← 5. Request for Admission←← NOTE – 26(b)(2)(A) – Court can alter the limits in these rules on number of depositions and interrogatories or on length of depositions (Rule 30). They can also limit number of requests (Rule 36)←← 26(e) – Supplementing Disclosures and Responses← (1) Party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete/incorrect, and if the additional/corrective information has not otherwise been made known to other parties during discovery process or in writing; OR

(b) as ordered by the court← (2) For an expert witness whose report must be disclosed under Rule 26(a)(2)(B), he must also supplement information in their report or deposition. Any additions/changes must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due. ←← Typically, you don’t involve judge so much in discovery. Rule of Thumb is 3 bite rule

Lawyer does this because when she gets before the judge, she wants to ensure the story judge hears it that she’s trying to comply with the rules and other side is obstructing discovery and coming to the judge is the last resort

←← Depositions – Rule 30

Testimony taken under oath in front of a notary (no judge)o Other side can always be present for cross-examination. They may also participate through

written questions delivered to the noticing party and asked by an officer (30(c)(3)) Usually little reason for counsel to “cross-examine” your own witness/party, since the

opposing lawyer is there to counsel his witnesses, but he may want to clarify statements that could be misinterpreted

This is usually done last as you want to compile information for the deposition, it’s most expensiveo Previews witness testimony, it’s on the record, lawyer can ask follow-ups

Can be used in two ways:o Discovery deposition - open ended questions asked to pin down as much information as

possible from witness that may be offered at trial)o Evidence Deposition - if witness is unavailable to testify at trial, this will be used in place of

their testimony

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This is probably the only time counsel would depose its own witness and opposing counsel would cross-examine fully

Who – Anyone with discoverable information can be deposed (30(a)(1))o If deponent is party – Counsel initiates deposition by sending a notice of the deposition to ALL

parties in the action, stating time/place (30(b)(1))o If deponent is NOT a party – must be subpoenaed under Rule 45 as well

If they want non-party deponent to produce documents, they must serve a notice of that (subpoena duces tecum) with notice of deposition

o Some depositions require leave of court: If parties have not stipulated to the deposition AND (i) deposition would result in more than 10 per side OR (ii) deponent has already been deposed in this case; OR (iii) party seeks to take deposition before time specified in Rule 26(d) (unless party certifies that deponent will be outside US or unavailable after that that time)

Or Deponent is in jailo If a corporation is noticed, the named organization must designated one or more officers,

directors, etc. who can testify on its behalf Recording

o Party who notices the deposition must state in the notice the method for recording the testimony. Usually audio, audiovisual, stenographic. Noticing party bears recording costs

o Any party can specify another method of recording, with them bearing the cost By Whom

o Unless parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. Officer must begin with an on the record statement including his name, business address, date/time/place of deposition, deponent’s name, administration of oath to deponent, identify of all people present

Objections – Noted on the record, but examination still proceeds. Testimony is taken subject to an objection

o Person may instruct deponent not to answer only when necessary to preserve a privilege, enforce a limitation ordered by the court, or to present a motion under 30(d)(3)

Duration – Deposition limited to 1 day of 7 hours. Court must allow for additional time if neededo 30(a)(2)(A)(i) imposes a presumptive limit of 10 per side but that can be altered

Sanctions: Court may impose sanctions on any person who impedes, delays or frustrations the fair examination of a deponent

Motion to Terminate or Limit: Deponent or party may move to terminate or limit deposition on ground that it is being conducted in bad faith or manner that unreasonably annoys/embarrasses/oppresses deponent or party. Motion may be filed in court where action is pending/deposition is taking place. If objecting party demands, deposition may be suspended for time necessary to obtain order. 30(d)(3)(A)

o Court may order that deposition be terminated or limit its scope and manner as provided in 26(c) (protective orders). 30(d)(3)(C).

Failing to Attend or Serve; Expenses – A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney’s fees, if noticing party failed to attend or serve a subpoena on a nonparty deponent who didn’t attend

Rule 31. Deposition by Written Testimony Party may serve on the other parties a set of questions that will be asked to a witness. Court officer

then swears in the witness and asked the questions. o Advantage- lawyer need not attend

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o Disadvantage- witness is likely to know in advance the questions that will be asked; no opportunity for follow-up

← Rule 32. Using Depositions in Court Proceedings For any purpose if deponent is an adverse party Can be used to impeach or contradict testimony given by deponent as witness Used for unavailable witnesses Gives rules for waiver of objections [See 32(d)(1)-(4)]

← Rule 45. Subpoena If person to be deposed is NOT a party, she must be subpoenaed by deposition under Rule 45. Can object under 45(c)(2)(B) if want to resist other side files motion to compel May be held in contempt of court if does not appear. 45(e)

←← Interrogatories – Rule 33

Questions that you may send to other parties in the case (not to non-parties like depositions) answered in writing and under oath (unless there’s an objection)

o This is a reason for making someone a party to a case (i.e., sue both bus company and bus driver (even though he has no $$), then dismiss bus driver after discovery)

You typically send these first because it’s a cheap way of getting background information from other parties (names/addresses, location of documents, etc.)

o But counsel is usually stringy in giving answers Less expensive and more effective than depositions for acquiring detailed, objective information

o Depo – Required to answer based on knowledge and information witness has at the time of the depo

o Interrogatories – Parties must provide facts that are reasonable available to them, even if this requires reviewing files of documents

Who 33(b)(1) – Interrogatories must be answered by the party to whom they are directed or, if corporation, by an officer or agent

o 33(b)(3) - Each interrogatory must, to the extent it’s not objected to, by answered separately and fully in writing under oath

o 33(b)(5) – Person who makes them must sign themo These are typically drafted by lawter and therefore may not be effective for ascertaining

testimony or credibility of witnesses When 33(b)(2) – Within 30 days after being served. Shorter/longer time can be stipulated by court

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Objections 33(b)(4) – Grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated is waived unless court excuses it

o 33(b)(5) Attorney who raises them must sign them Limits 33(a)(1) – No more than 25 interrogatories, including all discrete subparts. Leave to serve

additional may be granted consistent with 26(b)(2) Scope 33(a)(2) – Interrogatory must relate to any matter that may be inquired into under 26(b). It’s

not objectionably merely because it asks for a contention that relates to fact or application of law to fact, but court may order that interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time

o Therefore, contention interrogatories are permissible but don’t get you very far. Used to force opponent to specify the grounds of the general claims raised in

complaint/answer i.e. can ask plaintiff who generally alleged negligence in what ways the

defendant’s conduct was negligent Option to Produce Business Records 33(d) – If answer to interrogatory may be determined by

looking at a party’s business records (including ESI), and if the burden of deriving the answer will be substantially the same for either party, the responding party may answer by

o (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

o (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies

←← Production of Documents – Rule 34

Party may serve on any other party a request within the scope of 26(b) to produce and permit requesting party to inspect, copy, test any writings, ESI, tangible things, or let them inspect the designated object, etc.

o Basically it authorizes a party to require an opponent to produce documents/things in their control for inspection/copying

This is typically done early on (after interrogatories) to give you stuff that you can ask witnesses about during depositions

Parties resist requests for production of documents by construing them narrowly, so requesting lawyers draft them VERY broadly

Procedure 34(b)(1) – Request must describe with “reasonable particularity” reach item or category to be inspected, state a reasonable time/place/manner for inspection, may specify form in which ESI is to produced

Responses and Objections 34(b)(2)o Must respond in writing within 30 days – can be amended via Rule 29o Must respond to each item (allow inspection or state objection)o As with interrogatories, responding party can simply offer to open their records as they’re kept

in ordinary course of business for examination by requesting party 0 this imposes a big burden on requesting burden to cull through all the records

At minimum, they should indicate how they’re organized, which records respond to which requests, and other info necessary to locate requested items

ESI (34(b)(2)(E)) – See ESI Belowo Party must produce documents as they are kept in the usual course of business or must

organize/label them to correspond to categories in the request

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o If request does not specify form for producing ESI, party must produce it in form usually maintained

o A party need not produce the same ESI in more than one form Nonparties (34(c) – Non-party may be compelled to produce via subpoena (Rule 45)

←Requests for Mental and Physical Exams – Rule 35

Requires Court Order, where party whose mental or physical condition is in controversy Prove two things:

o 35(a)(1) Reason for exam is in controversy (relates to issue in the case) Materiality and relevance of the issue – Law, Facts, Conclusion In almost all cases, the fact that a plaintiff is claiming substantial injuries will justify an

order for the exam Did the trucker see the red light? Vision of truck driver is important here

o 35(a)(2) Must be for “good cause” Weigh need to get information from other parties/sources against burden on party

(intrusiveness) Party who requested the examination must, on request, deliver to the requester a copy of the

examiner’s report which should include the examiner’s findings, diagnoses, conclusions, test results o After delivering reports, party who moved for examination may request from the party against

whom the examination order was issued like reports of all earlier or later exams of the same condition

By requesting and obtaining examiner’s report, or by deposing the examiner, party examined waives any privilege it may have concerning testimony about all examinations of the same condition

←← Requests for Admission – Rule 36

Request for Admission isn’t really a discovery device, but a way of narrowing the scope of trial by eliminating uncontested issues

Scope 36(a)(1) – Party may serve a written request on another party to admit the truth of any matters within the scope of 26(b)(1) relating to facts, application of law to facts and the genuineness of any described documents

Time to Respond 36(a)(3) – A matter is admitted, unless within 30 days after being served, party serves on requesting party a written answer or objection

o Always respond! If you fail to object or deny, they’re considered admitted Answer 36(a)(4) – If a matter is not admitted, answer must specifically deny it or state why they can’t

truthfully admit/deny it. They can assert lack of knowledge as a reason for failing to admit/deny, but only if they’re made reasonable inquiry and information that it knows/can readily obtain is insufficient to enable it to deny

Requests for admissions that are admitted are binding on party at trial

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o Vs. interrogatories, which are admissible but NOT binding Effect of an Admission; Withdrawing or Amending it 36(b) – A matter admitted under this rule is

established unless the court permits the admission to be withdrawn or amended, if it would promote the presentation of the merits of the action and the court is not persuaded that it would prejudice the requesting party

o Admission under this rule can’t be used for any other purpose or against the party in another proceeding – No Preclusive Effect on other cases

So they can admit to something, amend it, then if withdrawal is granted, the opponent has to litigate an issue her opponent and previously withdrawn from contention

←← Stipulation about Discovery Procedure – Rule 29

Parties may stipulate that (a) depositions be taken in a different way or (b) other procedures governing/limiting discovery may be changed (however, stipulation extending time for discovery must have court approval if it interferes with time set for completion of discovery, hearing a motion, or for trial.

←←←← United Oil v. Parts Assoc., Inc. (D. Md. 2005)

United Oil is suing R&H for indemnity/contribution out of payment they made for causing someone’s liver damage. R&H made the dyes that caused the damage – their theory is based on failure to warn, that R&H knew risk and didn’t warn. R&H didn’t respond to interrogatories thinking they were broad

Issue – How broad is discovery? Can United get information on every claim for every kind of damage to every part of the body?

o United Oil wants to find out about previous lawsuits involving the dyes (used in any amount) as well as for any body part (i.e., if it caused heart disease)

Rule – Discovery of other litigation is allowed where it involves (1) the same/similar claims arising from (2) the same/similar products at issue

o Similar claims (related to liver disease), related to failure to warn (of the specific dyes)o The “relevance” for discovery is viewed more liberally than the “relevance” for evidence

If you’re the party seeking discovery (United Oil), it’s not a question of what’s convenient/inconvenient? You’re trying to tell the judge a story about how this is relevant for failure to warn

o Explain to judge why other products containing similar kinds of chemicals would have put R&H on notice that would have required them to post a warning label about how break cleaner product was going to be used

o Court says this is relevant to claim/defense! The burden is on party resisting discovery (R&H) to explain their objections given the liberal

construction of the rules 33(d)- if interrogatory may be answering by providing business records, party may just provide these

documents to the other party. However, court rules that Parts could not answer the interrogatories by solely providing United with boxes of documents.

o Fundamental question is whether the burden is equal on both sides. Here, the burden was not equal- Parts was more familiar with documents, much easier for them to answer the questions themselves. This was not a proper use of 33(d).

Holding – The Court grants most of United Oil’s motion to compel answers to the interrogatories – they can get discovery involving any product that contains the chemical, but only related to liver disease

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Take Away – Judges rule on many pre-trial motions. The key is to get the judge to buy into “your story” from the initial complaint. Explain your theory so as to persuade and get the judge on your side

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← E-Discovery Electronically Stored Information (ESI) is about 93% of how organizes keep information The rules were amended in 2006 to explicitly include ESI Zubulake highlights the critical role that lawyers play in the discovery process

o Counsel has an obligation to monitor compliance, locate relevant information, and continuing duty to ensure preservation (duty to supplement under 26(e))

Spoliation – Destruction of evidenceo Obligation comes into effect when one can reasonable anticipate that dispute may lead to

litigation; attorneys must tell client to preserve evidence Lessons:

o (1) You need to be IT savvy if you’re a litigator or have a good IT consultant Become an expert on client’s e-storage system and find where things are kept

o (2) Litigation environment favors preparation in advance – ensure ESI doesn’t get destroyedo (3) Warn clients about use of email – It’s permanent and treated by the law the same way as

paper documentso (4) Much more supervision from partners on the top – they need to be actively involved in the

processo (5) There are some safety valves – privilege, inadvertent disclosure (26(b)(5)), good faith

(37(e))o (6) Cost/benefit analysis of discovery under 26(b)(2) or to get a protective order under Rule

26(c) is now more important than ever because cost of discovery is high ESI Changes to Federal Rules:

o Definitions in 33 (Interrogatories) and 34 (Production of Documents) were amended to make clear that ESI is discoverable

o 26(A)(1)(A)(ii) – ESI must be disclosed as part of required initial disclosures o Rule 26(b)(2)(B) provides a process for addressing disputes over ESI that is “not reasonably

accessible” – SEE NOTE Party from whom discovery is sought must show information is not reasonable

accessible because of undue burden or cost If showing is made, court still may order discovery from such sources if requesting party

shows good cause Court can also specify conditions (like cost) for the discovery

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o Since there’s so much contained on backup tapes and the like, after producing ESI, the producing party may discover that some privileged material was released and seek its return

26(b)(5)(B) – notify party of “inadvertent disclosure”. Receiving party must destroy, return, or hold documents pending adjudication of privilege issue by court

o 26(f)(3)(C) – Discovery planning conference must talk about how to produce ESIo 37(e) – Sanctions may NOT be imposed for destruction of ESI through “routine good faith

operation of an electronic information system” But it doesn’t apply if party had duty to STOP automatic deletion of ESI relevant to

litigation Once it becomes clear that litigation is pending, a party may have a duty to preserve

relevant evidence through a “litigation hold” Note: The Advisory Committee Comments on Rule 26(b)(2)(B)

o Once it is shown that a source of ESI is not reasonably accessible, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C) that balance the costs and potential benefits of discovery. The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) specificity of discovery requests; (2) quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant info that seems likely to have existed but is not longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) importance of the issues at stake in the litigation; and (7) the parties’ resources

← Zubulake v. UBS Warburg Zubulake is an equities trader who is suing her former employer for gender discrimination. This opinion

(5th in the case) is around D withholding information that they deleted in bad faith In-house counsel gave instruction to preserve files 6 months after suit was filed which didn’t pertain to

backup tapes. It was only after Zubulake asked for stuff on backup tapes that opposing counsel told his client to stop recycling them

Zubulake wants an adverse inference instruction to the jury. Three elements:o (1) Party with control over evidence had an obligation to preserve ito (2) Records were destroyed with culpable state of mindo (3) Destroyed evidence relevant to party’s claim (this is inferred from a willful state of mind)

Lawyers should:o (1) Issue a litigation hold from outset of litigation, periodically reissuing ito (2) Speak directly with key playerso (3) Instruct all employees to produce electronic copies of their relevant active fileso (4) Ensure all backup media is identified and stored safely

Holding – Counsel failed to properly oversee UBS by not communicating adequately with an employee about archiving – they didn’t make sure the relevant data was maintained

o Also, UBS didn’t follow the instructions the lawyers did giveo Sanctions are imposed and adverse inference instruction is given to the jury

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← Qualified and Absolute Privileges ← Privileges are a policy judgment that certain interests are more important than fact finding and truth seeking

The benefit to justice of a franker disclosure in a lawyer’s office outweighs the benefit of bringing all facts to the court

This is meant to curb the threat of discovery. Discovery can discourage litigants with good claims/defenses from pursuing their rights out of fear that private/confidential info will be to be disclosed

26(b)(1) limits scope of discovery to “non-privileged” information Remember, court has the authority to order a protective order under 26(c) 26(b)(5). Claiming Privilege or Protection Trial-Preparation Materials

o (A) When a party withholds information otherwise discoverable by saying it’s privileged or subject to protection as trial-preparation material, the party must

Expressly make the claim Describe the nature of documents/stuff without revealing protected information that will

enable other parties to “assess the claim” Advisory Committee Note : if claimant doesn’t properly claim the privilege or

protection, this may be viewed as a waiver. However, courts generally refuse to invoke harsh remedy of waiver without showing of prejudice or bad faith

o (B) – When privilege information is inadvertently disclosed, the disclosing party can tell the other party about the claim. After being notified, receiving party must promptly return, sequester, or destroy the information and can’t use/disclose it until the claim is resolved, and may present information to the court under deal for determination of claim

← Absolute Privilege – May not be overcome under any circumstances Attorney/Client; Doctor/Patient, Priest/Parishioner

← Attorney-Client Privilege Privilege applies only if: (1) Asserted holder of privilege is, or sought to become, a client

o Cocktail party chatter isn’t privileged, unless its clear that he wants to become a client (2) Person to whom the communication was made;

o (a) is a member of the bar of a court, or his subordinate ando (b) in connection with this communication is acting as a lawyer;

If information was communicated for business advise, the information is not privileged (3) The communication relates to a fact of which the attorney was informed

o (a) by his client

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o (b) without the presence of strangerso (c) for the purpose of securing primarily either

(i) an opinion on law, or (ii) legal services, or (iii) assistance in some legal proceeding and not

o (d) for the purpose of committing a crime or tort; and (4) the privilege has been

o (a) claimed, ando (b) not waived by the client

Must be asserted by the client. The attorney can claim it as his representative but it’s the client’s privilege

Rationale – Effective representation requires full and frank communication between lawyer and client; clients may be reluctant to talk to their lawyers honestly if there was no privilege

Corporate Setting – Corporate lawyer has attorney-client privilege with the corporation. Individual employees are not necessary represented by the corporate lawyer and the corporation can waive the privilege, so the employee should get his own counsel

ATTORNEY-CLIENT PRIVILEGE PROTECTS THE COMMUNICATION ITSELF, NOT THE UNDERLYING FACTS

o Client can’t be compelled to answer “what did you say to your attorney?”o But he may not refuse to disclose any relevant fact within his knowledge merely because he

incorporated it into his communication to his lawyer ← Qualified Privilege – May be asserted, but may be overcome by the other side if it needs the information enough and satisfies court’s requirements

Work Product - Three categories:o (1) Discovery barred for documents prepared in anticipation of litigation that contain

information reasonably obtainable through other means Line for this is fuzzy where it’s work that could be classified as the normal business of

the party, instead of work in anticipation of litigation Insurance investigations are usually NOT work product because it’s done in

regular course of businesso (2) Discovery may be allowed if requesting party demonstrates a substantial need for

materials developed in anticipation of litigation and that similar information cannot be obtained through other means without substantial hardship

o (3) Discover barred for opposing counsel’s thought process in preparing a case (opinion work product)

← 26(b)(3) Trial Preparation: Materials (Hickman Codified) A. Ordinarily, a party may NOT discover documents and other tangible things that are prepared in

anticipation of litigation or for trial by OR FOR another party or its representative (including the other party’s attorney, consultant, surety, inseminator, insurer, or agent). BUT, subject to 26(b)(4), those materials MAY be discovered if:

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o They are otherwise discoverable under 26(b)(1) ANDo The party shows it has substantial need for the materials to prepare its case AND cannot,

without undue hardship, obtain their substantial equivalent by other means B. If court orders discovery of those materials, it MUST protect against disclosure of the mental

impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation

C. Any party on request and without showing can obtain their own previous statement about the action or its subject matter. If request is refused, can get sanctions. A previous statement is either a written statement that the person has signed, or a contemporaneous stenographic/electrical/transcription that recites verbatim the person’s oral statement.

← Notes: Work product is subject to qualified privilege because it can be overcome with significant showing by

other party “In anticipation of litigation” – does NOT require that litigation has commenced

o Some courts suggest that protection extends only when adversarial proceedings are contemplated (more than anticipation of settlement)

o Material must have been prepared to assist in litigation, or prepared because of litigation Rule only applies to documents or tangible things. Answers to interrogatories and responses to

deposition questions are NOT covered by 26(b)(3) and are NOT work producto However, principles from Hickman still protect information in intangible form

The findings do NOT have to be done by lawyer himself. As long as its done in anticipation of litigation/preparation for trial, it received work product protection

o Example – In the case of fire, insurance company suspects Arson. An investigator is sent to the scene to determine the cause and sends a written report to chief claims person and general counsel

Materials assembled in ordinary course of business or pursuant to public requirements are NOT under qualified immunity protection - like accident reports, insurance claims

Not every claim investigated by insurance company is in anticipation of litigation – it’s their job to investigate. Therefore, never deemed work product (“ordinary course of business” exception)

o Example – If insurance company sent specialized arsonist investigator with knowledge that insurance company will deny claim if arson found, this may be work product.

Not normal course of company’s business - secondary investigation to gather information to prepare for trial

There are different views on whether material produced in anticipation in one suit is protected from discovery in future litigation

←← Some states LIMIT Work Product Protection - Whose privilege laws do we apply?

Federal rules don’t tell us what to do except for work-product For attorney-client (or other recognized privileges), look to Federal Rules of Evidence 501

o Use federal common law to govern privilege, except for civil proceedings that use state lawo If it’s a federal question case, use federal common law to decide privilege

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o If it’s a case where state law decides substantive issues (i.e. diversity), then use state law to govern privilege

←← Hickman v. Taylor (1947)

Taylor’s boat sank. They hired Fortenbaugh to represent them. He interviewed survivors and took statements in preparation for possible litigation. The one party who didn’t settle filed interrogatories asking whether any statement of the survivors had been taken and for info from those statements. Fortenbaugh says he took statements but won’t give what was said, saying it was an indirect way to obtain his private files

o Procedural Note – This case was interlocutory appealed because after the district court said he had to answer the interrogatory, Fortenbaugh refused and was held in contempt so he could appeal collaterally – RISKY MOVE!

At the time, there was no federal rule on point for this (now there’s 26(b)(3)). Rule 34(a)(1) permits a requesting party to inspect items in the other party’s control but this was the lawyer’s notes, not something belonging to Tug Owners, same for Rule 33

o Hickman says no attorney-client privilege because these weren’t statements between a client and attorney

o Only way would be to subpoena attorney under Rule 45 – but the court ignores this procedural mistake in ruling on the case

Court says the genera policy against invading privacy of attorney’s course of preparation is so essential to an orderly working of the legal system that burden rest on one who would invade privacy to justify why it’s necessary

o There’s no statutory limitation, so court gets this from Common Law Holding – Creates work product doctrine later embodied in 26(b)(3) (above). No necessity was shown

here because Hickman could interview the witnesses himself! Lawyer’s notes are privileged Reasoning:

o Allowing discovery of work product would interfere with confidentiality of trial preparation This may lead lawyers to become reluctant to keep written records

o It would allow lawyers to ride on their adversary’s coattails and not do their own work - unfairo Concern about prospect of lawyers ending up as witnesses in their own cases if statements they

produced contradicted other testimony from same witness o Inefficiency, unfairness, and sharp practices would develop in giving of legal advice if other

party could get work products. Effects on legal profession would be demoralizing

←

← Experts Expert Witness – Person whose testimony, because of her specialized knowledge, skill ,experience,

training, or education, will assist the tier of fact in understanding the facts and reaching conclusions on the contested issues

o They also can offer opinions, whereas lay witnesses cannot o Voir Dire – Used to defeat expert’s qualifications or to cast doubt on credibility of experto Two kinds of experts – Consultants who assist in preparation and those who testify at trial

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The knowledge of both relates to parties claims/defenses, so it’s within discoverable scope, but rules contain special provisions restricting the right to obtain pre-trial discovery from other parties’ experts

26(a)(2) Disclosure of Expert Testimonyo A. In addition to 26(a)(1) disclosures, party must also disclose the identity of any witness it

may use at trial to present evidenceo B. Unless otherwise stipulated by court, disclosure must be accompanied by a written report

prepared and signed by the witness, if the witness is one retained or specially employed to provide expert testimony in the case, or one whose duties as the party’s employee regularly involve giving expert testimony. Report must contain:

Statement of opinions the witness will express and the basis for them Facts/data considered by the witness in forming opinions

If attorney gives expert material that would otherwise be work product, the majority of courts rule that the material reviewed by the testifying expert is discoverable, thereby destroying work-product privilege

Any exhibits used to summarize/support opinions Witness’ qualifications including publications in past 10 years List of all other cases they testified as an expert in within past 4 years Statement of compensation in the case

o C. If witness is not required to provide a written report, this disclosure must state: Subject matter on which witness is expected to present evidence Summary of facts/opinions to which witness is expected to testify

o D. Party must make these disclosures at times and in sequence court orders. Must be made: At least 90 days before date set for trial or for case to be ready for trial If evidence is intended solely to contradict or rebut evidence on same subject matter

identified by another party’s expert witness, within 30 days after other party’s disclosure

o E. Parties must supplement these disclosures when required under 26(e)o NOTE: The rule does NOT require disclosure regarding non-testifying experts

26(b)(4) Trial Preparation: Experts [Note – this section was amended so some of the numbering is off]

o A. [Experts who will Testify] A party may depose anyone who has been identified as an expert whose opinions may be presented at trial. If 26(a)(2)(B) requires a report, deposition can only occur after report is provided

Once the report is turned over, expert can be deposed o B. Rules 26(b)(3)(A)-(B) [Work Product] protect drafts of any report or disclosure required

under 26(a)(2), regardless of the form in which the draft is recordedo C. Rules 26(b)(3)(A)-(B) [Work Product] protect communications between party’s attorney and

any witness required to provide a report under 26(a)(2)(B), regardless of the form of the communication, except to the extent that the communication:

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(i) Relate to compensation for the expert’s study or testimony; (ii) Identify facts or data that the party’s attorney provided and that the expert

considered in forming the opinions to be expressed; or (iii) Identify assumptions that the party’s attorney provided and that the expert relied

on in forming the opinions to be expressedo D. [Experts who will NOT Testify] Ordinarily, a party may not, by interrogatories or

deposition, discover facts known/opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is NOT expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b) (Examiner’s Report under Physical/Mental Exam); or (ii) on showing of exceptional circumstances under which it is impracticable for the

party to obtain facts/opinions on the same subject by other means Like with work product protection in 26(b)(3) Note – Split in authority on whether names of non-testifying experts are

protected Ager definition of Exceptional Circumstances – Impossible for party to obtain its

own expert; other side’s expert can’t do a test because equipment needed to do it has been destroyed and the other retained expert did the experiment

o C. Unless manifest injustice would result, court must require that party seeking discovery: (i) pay the expert a reasonable fee for time spend in responding to discovery under

26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay other party a fair portion of fees/expenses in

reasonably incurred in obtaining expert’s facts/opinions ← Ager v. Jane Stormont Hospital (10th Cir. 1980)

Defendant wants the identity of experts that P consulted who will not testify at trial Magistrate in this case decided that P needs to answer interrogatories and disclose ID of experts who

won’t testifyo P might not want expert to testify because expert agrees with D; D finding this information

would be a big deal Issue – Whether a party may routinely discover the name of retained or especially employed

consultants who won’t testify at trial, pursuant to 26(b)(4)(D) absent a showing of exceptional circumstances?

Four Categories of Experts : o (1) Experts expected to testify (26(a)(2)); o (2) Experts retained/specially employed in preparation for trial but not expected to testify

Facts/Opinions can be discovered only with exceptional circumstance (26)(b)(4)(D)o (3) Experts informally consulted but not retained

No discoveryo (4) Experts whose information was not acquired in preparation for trial (regular employees of a

party not specially employed on the case or experts who were actors/viewers of occurrences that gave raise to suit)

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Treated as ordinary witness – freely discoverable However, this does not mean that party whose trial expert is a regular employee (and

therefore not retained or specially employed) can ignore mandatory disclosure requirement of Rule 26(a)(2) that required testifying experts to provide reports to other side if they were retained or specially employed. Most courts have held against this unintended loophole

Plaintiff wants to argue that the experts are informally consulted (no discovery); Trial court looks to a more conventional definition of informally consulted (asking your friend the doctor on the golf course)

Status of each expert must be determined on an ad hoc basis, looking at :o (1) Manner in which consultation was initiatedo (2) Nature, type, extent of information provided to determined by experto (3) Duration/intensity of the relationshipo (4) Terms of consultation

Case is Remanded to determine if expert was informally consulted. Even to name/address, we want the exceptional circumstances threshold to apply

o Courts may be split on this though ←← NOTE:

Regarding testifying experts, considerable tension between rules that product work product and rules that require disclosure of expert’s work/communication with lawyer.

o Litigants ran into problems because needed/wanted to tell experts information, but this information would then become discoverable.

Lawyers came up with idea to hire non-testifying expert who can communicate with expert and talk about how the testimony should be prepared

o Non-testifying experts can also educate counsel on procedures, prepare witnesses to testify, develop theories of recovery, develop exhibits

o These people are not subject to disclosure aside from compelling need. o Way to get around discovery process, yet complicated result.

←← Why do lawyers who disobey discovery order want to be held in contempt of court?

This is done purposefully. Contempt citation is necessary to ensure immediate appellate review of discovery ruling

Litigants cannot appeal until there is a final judgment that ends the whole caseo Because discovery rulings come before the end of the case, these rulings are not immediately

appealable

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However, a contempt citation is immediately appealable because considered a separate (collateral) proceeding.

← Discovery Overseas Broad discovery is unique to the US System

o In civil law countries, lawyer-conducted discovery is limited; courts are responsible for developing evidence

o Other common law countries allow some discovery- but limited by time limitations, pleading rules, and aversion to using discovery for “fishing expeditions”

If documents/witnesses are in control of other party, then most judges require just a simple filing Rule 34 request of documents or subpoena for deposition

Harder question is where you need a rule 45 subpoena – you can’t just call up the foreign country. You need to use Hague Evidence Convention – discovery of documents/witnesses who are overseas

o Sometimes, deponent will be required to come to US; other times, deposition will be abroad.o Rule 28(b) address the mechanics of taking depositions abroad o SCOTUS says Hague Convention supplements, but not displaces, discovery toolso Countries have responded to US’s discovery system by enacting blocking statutes which

prohibit disclosure of certain info, even in response to discovery requests However, despite civil/criminal penalties, these statutes do not deprive an American

court of the power to order a party subject to its jurisdiction to produce evidence, even though act of production may violate statute

For info here where case is abroad: 28 USC §1782 – Federal District Courts can provide discovery from requests overseas

o Court should consider whether person from whom discovery is sought is a participant in a foreign proceeding. Court can also factor in the nature/character of the foreign tribunal

← Managing a District Court Caseload In 1960s, pre-trial in federal courts was run by attorneys. You only went to court if there was a dispute.

Court date would be set when parties were ready (lead to cases being dragged out) Ultimately, litigation became too protracted and judge’s caseloads were too overwhelming which lead

to a number of changes in the judicial system regarding how judges should take a more active role in managing cases, imposing deadlines, encouraging settlements

o Reflected in Rule 16 conference, mandatory schedule order, sanctions for not cooperating 26(a)(3) Pretrial Disclosures

o A. In addition to 26(a)(1)-(2) disclosures, party must provide and promptly file the following information about evidence it may present at trial other than solely for impeachment

Name/Address/Phone of each witness – separating those it may present and those it will call if need arises

Designation of those witnesses and testimony the party expects to present by deposition and transcript of pertinent parts of deposition

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ID of each document or other exhibit, separating those it may present and those it will call if need arises

o B. Disclosures must be made 30 days before trial. Opposing side then has 14 days to object to use of certain witnesses/documents

Judge will rule on all of them before trial 26(a)(4) – All disclosures under 26(a) must be in writing, signed, and served Judges

o Serve lifetime tenure – there’s an appeals process if they mess up The right to a jury trial is the ultimate check on power, but there is no jury for pretrial

stuffo No precedent regarding how judges should manage pretrial, and no appeals process either

Unless decisions are made by magistrate, then they’re appealable to district judgeo Best thing to do is deal with settlement through a magistrate judge who has no influence over

the case, but acts as a mediator in encouraging settlement Shield judge from settlement process by giving it to a magistrate Note – If D offers to settle and P rejects, then P gets a lesser judgment than was offered

by D, P must pay D’s costs (not attorney’s fees) Scheduling Rule 26(d) – No formal discovery before parties have conferred as required by Rule 26(f) Rule 26(f) Conference of Parties; Planning for Discovery

o (1) Timing – Parties must confer at least 21 days before a scheduling conference is to be held or a scheduling order is due under 16(b). Submit report within 14 days of meeting

o (2) Parties must consider nature and basis of their claims/defenses, possibilities for settling/resolving the case, make arrangements for 26(a)(1) disclosures, discuss issues about preserving discoverable information and develop a discovery plan

o (3) Discovery Plano (4) Expedited Service

Court could alter the timing – Rocket Docket in VA! Rule 16 – Pretrial Conferences; Scheduling; Management

o (a) – Purposes of a pretrial conference Express objective: Facilitating Settlement (16)(a)(5))

o (b) – Scheduling

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(1) Scheduling Order – District or magistrate judge must issue a scheduling order: (A) After receiving parties’ report under 26(f) or (B) After consulting with parties’ attorneys and any unrepresented parties at a

scheduling conference Scheduling order is the blueprint for pretrial litigation as a whole.

(2) Judge must issue scheduling order within the earlier of 120 days after D has been served with complaint or 90 days after D has appeared

Thus, 26(f) conference could occur as late as 99 (120-21) days after filing complaint

Initial disclosures required by 26(a)(1) must be produced within 14 days after 26(f) conference (26(a)(1)(C))

(3) Contents of the Order (A) Required - Time limits for joinder, amendment of pleadings, motion,

discovery (B) Permitted – modify timings, extent of discovery, disclosure of ESI

o (c) Court may hold multiple pretrial conferences; matters for consideration at these conferences is listed this rule

o (d) After any conference under this rule, court should issue an order reciting the action taken, which will control the court of action until modified by court

Court can hold as many pretrial conferences as it wants. Court may be able to narrow numbers/scope of issues

o (e) – Court may hold final pretrial conference to formulate a trial plan. Must be held as close to start of trial as reasonable. Court may modify the order issued after a final pretrial conference only to avoid manifest justice

Timing o Rule 26(f) conference between the parties (no discovery until this point)

Can be as late as 99 days after service (needs to occur 21 days before scheduling order)

Must submit written report of this conference within 14 dayso Initial disclosures required by Rule 26(a)(1) must be produced within 14 after Rule 26(f)

conferenceo Pretrial disclosures under Rule 26(a)(3) must be made 30 days before trialo Pretrial scheduling conference

← Sanctions Rule 37 – First Resort; Rule 26 – for Serious Discovery Problems

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Rule 37 – Failure to Make Disclosures or to Cooperate; Sanctionso (a) Motion for an Order Compelling Disclosure or Discovery

If other party has prior notice, a party may move for an order compelling disclosure or discovery. It must include that movant has in good faith conferred/attempted to confer with other party and it hasn’t worked

For party – motion in court where action is pending; For non-party, do it in court will discovery will be taken

Must ask other party before invoking the court! Motions

To Compel Disclosure – If a party fails to disclosure under 26(a), any other party may move to compel disclosure and for appropriate sanctions

To Compel a Discovery Response – Party seeking discovery may move for an order compelling answer, designation, production, inspection if:

Deponent (or Corporation) fails to answer a question in a deposition Party fails to answer interrogatory Party fails to respond that inspection will be permitted or fails to permit

inspection [of document request under Rule 34] When taking an oral deposition party asking a question may complete or

adjourn the examination before moving for an order Note: A motion to compel is NOT a prerequisite for sanctions. For purposes of 37(a) Evasive or incomplete disclosure/answer/response must be

treated as failure to disclose After hearing both sides, judge can:

Require party/deponent, the party or attorney advising that conduct, or both to pay movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But not if:

Movant filed motion before attempting in good faith to obtain disclosure without court action, or

Opposing party’s nondisclosure was substantially justified, or Other Circumstances

Deny motion and issue protective order, requiring movant or deponent who raised the issue to pay other side’s attorney’s fees

o (b) Failure to Comply with Court Order If it’s where deposition is taken, failure may be treated as contempt of court If it’s where action is pending, Court may: (i) order the matters to be treated as

admitted; (ii) prohibit the party from supporting or opposing designated claims or defenses; (iii) strike pleadings, stay or dismiss the action, or render a default judgment, or (iv) hold the delinquent party or witness in contempt (contempt may not be used be Rule 35 – order to submit to physical/mental exam). May also assess reasonable fees, including attorneys fees.

o (c) Failure to Disclose Supplement

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Sanctions are available for failure to disclosure under Rule 26(a), supplement under Rule 26(e), failure to admit under Rule 36. Party who fails to make required disclosures will not be permitted to use the info withheld as evidence at trial, at hearing, or on a motion, unless failure was harmless. 37(c).

o (d) Party’s Failure to Attend Its Own Depositions, Serve Answers, Respond to Request If party fails to attend own depositions or fails to answer any interrogatories, party may

move for immediate sanctions (as opposed to motion to compel). Motion must certify that moving party made good faith attempt to obtain answer. Court may (i) order the matters to be treated as admitted; (ii) prohibit the party from supporting or opposing designated claims or defenses, (iii) strike pleadings, stay or dismiss the action, or render default judgment.

Rule 26(g) Signing Disclosures and Discovery Requests, Responses, and Objections o Discovery analogue of Rule 11 (which doesn’t apply to discovery process)o All disclosures under Rule 26(a)(1) or (a)(3) and every discovery request/response/object must

be signed by at least one attorney or unrepresented party. By signed, certifies that to best of that person’s knowledge, information and belief formed after reasonable inquiry that:

With respect to disclosure, complete and correct at time it is made With respect to discovery requests/responses/objections

Request is consistent with rules and warranted by good faith Not for improper purpose, to cause delay, needless expense, harass Not unreasonable or unduly expensive given the case and the importance of

the issues at stakeo Sanctions can be imposed on lawyer or parties

Include elimination of claim or defense, pay for attorneys fee← Washington Physicians v. Fisons Corp. (Wash. 1993)

Family sued Fisons and Dr. for making/prescribing a medicine that caused permanent brain damage to their daughter. Dr. cross-claims against Fisons After family settles with Dr., they give him a document dated 4 years prior indicating Fisons was aware of the life-threatening capability of the drug (Smoking Gun #1). After sanctions were denied and Fisons was told to produce documents, another smoking gun memo was discovered. Both family and Dr. say the documents should have been discovered through interrogatories and request for production but were not turned over.

Issue – Did the trial court err in denying sanctions against drug company for abuses during discovery Held – Remand for Sanctions

o Standard of review here is abuse of discretion – the appellate court must be absolutely certain that the trial court got it wrong – lots of deference to lower court

o Lower court decided that sanctions were not required because it used a subjective standard. (i.e. Fisons did not intentionally misfile documents, definition of “product” was unclear, conduct was consistent with customary and accepted litigation practices of bar, etc)

Trial court should have imposed a standard similar to 26(g) – Aimed at reducing delaying tactics, procedural harassment, and mounting legal costs. Rule requires attorney signing discovery request to certify that he’s read it and believes:

o (1) its consistent with discovery rules and warranted by law or a good faith modification for lawo (2) Not interposed for any improper purpose like to harass/delayo (3) Not unreasonable or unduly burdensome or expensive, given needs of caseo Objective Standard!

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Here, Fisons gave misleading responses. They put the damaging stuff about the drug in question in another file for a competing drug – but this was BS

o They didn’t fully answer interrogatory and answer requests for productiono Lawyer’s duty to place his client’s interest ahead of all others assumes lawyer will live with

rules that govern the system CLASSIC EXAMPLE OF DISCOVERY EVASION.

← Ethics in Discovery Model Rules of Professional Responsibility 3.4 and 3.5 In discovery, where the question is how broadly you interpret the process – lawyers like nuanced

distinctions but judges don’t like those interpretations o When judges get angry, they impose sanctions

Model Rule 8.3 – Any lawyer who knows of ethical rules must report it← Kodak Case

Donovan Leisure represented Kodak in litigation for being accused of monopoly At issue is Exhibit 666, produced by Kodak’s expert in which he said he doesn’t have a persuasive

answer regarding wither or not Kodak’s conduct was the result of innovation or acquiring smaller companies

o Letter was not produced in discovery, despite ruling that all “interim reports” prepared by this expert should go to the adversary

o Perkins said it wasn’t a report. After ruling he said he’ll take it under advisement but never got back to adversary

There was another briefcase about documents that Perkins lies about, saying they were duplicates of stuff already produced

When Perkins lies about the documents being destroyed, the associate tells him that’s untrue. Perkins ignores him and compounds his lie by signing an affidavit

o Perkins dug himself into a hole and then was probably embarrassed when associate told him he was wrong

o Psychology about it is weird since documents were innocuous and Perkins was otherwise upstanding

You never the lose the instinct of “no, I never took the cookies” from when you were 5 Shit hits the fan. Perkins served time in jail, Kodak settles case, Donovan Leisure loses Kodak – one of

their biggest clients← Be Ethical!

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←

II. Adjudication With and Without Trial Two Questions – Whether the adjudication process will include an actual trial? If so, will finder of fact

be a judge or a jury?

← Trial by Jury: The Seventh Amendment Jury does three basic things:

(1) Find facts (2) Evaluate facts in terms of legal consequences based on instructions from the judge (3) Required to present its conclusions in the form of a verdict

← Right granted in three places in Constitution: Art. III §2 – “Trial of all Crimes…shall be by Jury” 6th Amendment – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury…”o This has been incorporated to the states

7th Amendment – “In suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court, than according to the rules of the common law”

o This has NOT been incorporated to the stateso Two parts:

Jury Clause – Right of a jury trial is preserved Preserved = historical test where court determines if there was a right to a jury

at the time of the 7th Amendment’s ratification in 1791 Re-examination Clause – no fact tried before jury shall be reviewed be a judge

Would a judge at Common Law have reviewed and corrected a jury verdict in 1791?

Jury Clauseo The distinction (between jury vs. no jury) boils down to difference between courts of law and

courts of equity The two were merged in the US in 1938 English distinction – Law courts allowed jury, equity courts did not because it’s the

king’s court doing justice

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o When law and equity started merging in the US, you started getting difficulties: (1) Congress creates new causes of action all the time. Many times they’ll specify a

jury trial but with Civil Rights Act, it might not have been a good idea to have a jury trial, so courts had to determine if new causes of action (that didn’t exist in 1791) had right to a jury

(2) What happens when you have mixed claims for law and equity (damages/injunction)?

← Chauffeurs Local v. Terry (1990) – Establishes Historical Test There was a union agreement between McClean Trucking and Terry (some members of union). When

McClean changed their structure so some respondents were laid off, they field 2 grievances against McClean but the union declined to help them in one charge. They sue McLean (eventually dismissed) and that Union violated its duty of fair representation. They seek injunction and damages.

It’s a Fair Representation suit – Terry wants jury, Union says no. 4th Cir. says they get jury trial Issue – Whether an employee who seeks back pay for a union’s breach of fair representation has a right

to trial by jury? Rule – Juries for “suits at common law” – where legal (not equitable) rights are at stake. They can’t

bring their action against the employer unless they show union breached its duty of fair representation, so they have to prove two claims

o To determine if an action will resolve legal rights: (1) Compare statutory action to 18th century actions brought in English Courts (2) Examine the remedy sought and determine whether it’s legal or equitable in nature

On Prong (1), Fair Representation was unknown in 18th century England so we have to analogize it.o Union’s equitable analogy - Trust Beneficiary against a trustee for breach of fiduciary duty

(equity in 1791)o Terry’s legal analogy – Attorney Malpractice Action o Duty of fair representation alone is like trust analogy (equitable), but the cause against

employer is a breach of contract claim (legal), so the first test leaves with nothing Prong (2), Remedy Sought

o Request for compensatory damages for back pay/benefits = traditional legal remedyo Damages are equitable where they’re restitutionary. Back pay sought is not money wrongfully

held by Union, but wages they would have received from McClean had Union processed employee’s grievances properly

Holding – Respondents entitled to jury (legal action) Brennan – Look to only the second (remedy sought) prong. Get rid of comparison prong because the

second prong is more dispositive, it’s not worth judge’s time to compare to 18th centuryo In the remedy test, Courts must still ask which remedies were traditionally available at law and

which in equity Stevens – Duty of fair representation action – common-law action against an attorney for malpractice

(legal action)o He agrees with Terry’s argument on prong 1

Kenney (Dissent) – When court decided fair representation action was analogous to trust action (equitable), the inquiry should have ended and they should have said no jury

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o Stick to the historical test ← Notes:

The doctrine is in a state of confusion. The court is likely to look for a common law analogue and if they can’t find one, look to nature of the remedy

o If there was a dead-on analogy, but the remedy was opposite, Court would split up liabilities side from remedies side. Let jury decide liability, judge decide remedy (Tull v. US)

Some commentators urge for a third prong – Practical abilities and limitations of juries o Herbert Markman – Court looked at functional considerations in deciding that interpretation of a

patent is a question for the judge, not the jury Need for consistency in patent litigation – Court of Appeals for Federal Circuit

Overlap Case – Dairy Queen – DQ wants 2 injunctions from using their TMs and accounting for using the TM?

o Accounting can be done by expert = legal claimo It would be nice to give overlapping issues to a jury, because it’s like a breach of contract issue.

But in 1791 where you had overlapping case of law and equity, equity court would handle it But court says now that we can have jury decide, let them! Even if whole case would have gone to judge in 1791, today, where there are

overlapping issues, we can implement principle of 7th Amendment by giving all purely legal issues and any overlapping issues to jury first. Then, have judge decide purely equitable issues (affirmed Beacon Theaters)

Beacon Theaters – There is a right to a jury on legal claim and therefore, legal claim should be tried first

o Rule – Mixed Questions of law/equity, jury decides purely legal and overlapping issues (i.e., liability). Decide it first, and that becomes the law of the case which binds judge in equity finding

In non-Article III courts, SCOTUS has held that jury is required for adjudication of private rights but not for “new statutory public rights”

Most state constitutions provide a right to a jury in civil cases comparable to 7th Amendmento Some don’t follow Beacon Theaters, and hold that there is no right to a jury on a legal

counterclaim filed in response to an equitable claim Jury pooling is larger in Federal districts, hence why Robinsons in WWVW wanted to keep non-diverse

defendant out so they could keep it in state court ← Civil Cases: Right to Jury Trial?

(1) Look for historical analogue (in 1791) that is closely similar to newly created cause of action. If court finds one, then follow historical analogue

o NOTE – Congress can grant right to jury trial by statue (2) Ambiguous – Look to Nature of Remedy

o Money Damages = Court of Law = Jury Trialo Injunction = Equity = No Jury

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←← Federal Rules Relating To Jury Trials ← Rule 38 - Right to a Jury Trial

(a) includes unnecessary statement that right to jury trial is given by 7th Amendment (b)(1): Must demand jury no later than 14 days after the last pleading is served

o Demand can be in separate document, but most parties include it in pleading. Can specify what issues you want tried by a jury

(c): Party mat specify the issues that it wishes to have tried by jury; otherwise, considered to have demanded jury on all issues at trial.

(d): Failure to request jury constitutes a waiver, and case is tried before judge.

Rule 39 – Trial by Jury or by The Court Division of authority between judge and jury. Court has judicial discretion to try issues by jury even if

not required by 7th A, including with consent or use of advisory jury Rule 39(a): When jury trial has been demanded, must be a jury trial unless parties file a stipulation to a

jury trial or court, on motion or on its own, finds that there is no federal right to a jury trial on some or all of the issues.

←← Rule 48 – Number of Jurors; Verdict

Jury must have 6-12 members initially, and each must participate in verdict unless excused under 47(c). Verdict must be unanimous and returned by jury of at least 6 members (unless stipulated otherwise).

The Selection and Size of the JuryThe Venire and Voir Dire

Jurors come from master roll of prospective jurors which come from voter registration lists, driver’s licenses, taxpayers, etc.

o Lists used to exclude certain groups like minorities and women. In 1940s, SCOTUS struck at some of this and in 1975 it held that a list must be a reasonable cross-section of the population (Taylor v. Louisiana)

Jurors summoned are called the venire. Venire is widdled down through voir dire. o Purpose – To get information about prospective juror’s knowledge, bias, or opinions about the

caseo Judge usually conducts it. Lawyers give judge questions during the final pretrial conference and

the judge omits jurors for cause Based on voir dire, judge may strike juror for cause or lawyer can use a peremptory challenge

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o Cause – When Juror has close connection with parties/witnesses or has such fixed opinionso Peremptory challenges allow lawyers to strike jurors usually without need to state a reasono Judge has wide discretion as to scope of and questions in voir dire

←←← Peremptory Challenges

After independence, defendants had 20 challenges for capitol felonies, 35 for treasono Thought to equalize D’s position against government; legitimizes verdicto Prosecutor’s right to challenges came in the 20th century

Number of peremptory challenges is fixed by statute –federal civil suit it’s 3 per side (18 USC §1870)←← Rule 47 – Selection of Jurors

Parties/attorneys or court may examine jurors. If court conducts examination, attorney can give judge questions to ask.

Court must allow number of preemptory challenges provided by 28 USC § 1870 Court may exclude a juror for good cause during trial or deliberation.

←← Rule 48 – Number of Jurors; Verdict

Jury must have 6-12 members initially, and each must participate in verdict unless excused under 47(c). Verdict must be unanimous and returned by jury of at least 6 members (unless stipulated otherwise).

←← 28 USC §1870 – Challenges← In civil case, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly←← All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court←

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← J.E.B. v. Alabama (1994) State filed complaint for paternity and child support against J.E.B. As it went to trial, venire has 12

males and 24 females. State excused 3 for cause so 10 men were left. State used 9/10 peremptory challenges to remove male jurors; J.E.B. used 9/10 ousting females. Jury was all women. J.E>B. objected to state’s peremptory challenges on ground that they were exercised against men on basis of gender, in violation of Equal Protection, arguing logic of Batson forbids gender discrimination

Issue – Whether Equal Protection Clause forbids intentional discrimination on the basis of gender, as it does on race?

o Does gender discrimination in jury selection substantially further state’s legitimate interest in achieving a fair and impartial trial

Rule o Batson v. Kentucky (1986) – Equal Protection governs exercise of peremptory challenges by a

prosecutor in a criminal trialo Taylor v. Louisiana (1975) – Restriction jury service to only special groups cannot be squared

with constitutional concept of jury – women must serveo The only interest the state could have is to secure a fair and impartial jury

In Batson, the Court said some distinctions are so vital to the makeup of society, that you cannot exclude jurors based on those distinctions because they’re so corrosive

Holding – Batson does extent to gender. You can’t use gender as a basis for peremptory challengeso However, you can strike based on characteristics disproportionally associated with one gender

(i.e., military service) absent pretext Court later applies this to private actors as well because they’re relying on the power of judge (state

power) to remove the juror O’Connor – Agrees but the holding should be limited to government’s use of gender-based strikes Rehnquist (Dissent) – There are sufficient differences between race and gender discrimination such

that Batson shouldn’t apply hereo Under Equal Protection jurisprudence, race gets strict scrutiny; gender is a lower standard as

race is a minority, gender is equal Scalia (Dissent) – Since all groups are subject to peremptory challenge, it’s hard to see how any

group is denied equal protection← Notes:

Baton applies to American Indians, Italian Americans, Hispanicso Refused to cover exclusions based on age, socioeconomic status, disability, obesityo Split on religion – religious affiliation is impermissible to strike, but religious belief/activity is

allowable Process for determining if peremptory challenge was improper: (1) opponent must establish prima facie

case of discrimination; (2) burden shifts to proponent of challenge to find constitutionally permissible exception; (3) court must determine whether impermissible discrimination has been established

US v. Martinez-Salazar – Juror should have been removed for cause, bur judge says no and D used a peremptory challenge on juror. D gets convicted and appealed, saying he shouldn’t have had to use the challenge. The Court says the fact that D had to use one of his challenges was NOT a basis for reversing conviction

Mapplethorpe Obscenity Trial shows that challenge for cause system doesn’t always work because judges will keep jurors in spite of clear biases; good support for peremptory strike system

←

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← Jury Nullification and Its Limits Jury’s discretion in criminal cases is one-sided. They can acquit when evidence points to guilt but if

judge finds too little guilty evidence, judge may refuse to send case to jury Jury Nullification – When a jury based on its own sense of justice/fairness refuses to follow law and

convict in a particular case even though facts point to guilt No jury nullification in civil cases

Summary Judgment ← Continuum ← 12(b)(6)

← Summary Judgment

← Trial ← JMOL (directed verdict)

← Verdict←

← JMOL (JNOV)

12(b)(6) – Failure to State a Claim – Legal sufficiency based solely on the complainto D wants to determine if P has a legally cognizable claimo These usually point out slopping pleading and are dismissed without prejudice

JMOL – Based on information at trial (can occur before or after verdict)o No evidence upon which a reasonable jury could decide for one party

Summary Judgment – Asks if we need to go to a juryo Moving party presents more evidence than under 12(b)(6)o Judge decides through admissible evidence/things that can stand in place of admissible

evidence if there are any factual disputes←← Summary Judgment ← Rule 56 - A summary judgment motion is made because there’s no genuine issue of material fact with respect to the issue and moving party is entitled to judgment as a matter of law

Purpose – to determine whether there is an issue of fact to be tried Court can enter partial summary judgment on some issues instead of all Two situations:

o (1) Parties may agree on facts and dispute may be purely on the lawo (2) When parties disagree about facts but there is no “genuine” issue (one side has so little

evidence that no reasonable jury could find for that side)

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Circumstantial evidence is NOT inherently unreliable and CAN create a genuine issue of fact

A court should draw all reasonable inferences on behalf of the non-moving party, but could must determine that the inferences are reasonable

What constitutes a “fact”? Mixed questions of law and fact:o In a case of negligence, jury should decideo Whether a plaintiff is a public figure in a libel law case is a matter of law for the court

Court does NOT assess credibility – that’s a jury question Similar to Directed Verdicts (JNOV)- standard is the same but that’s based on evidence at trial

←← Determining Whether There is a Genuine Issue of Material Fact (56(a))

(1) No genuine issue of material fact (procedural issue)o If you make the SJ motion, you have to show that with respect to one material fact, that, for

example, the D was not misled (for fraud) and the showing has to be admissibleo If other side wants to defeat SJ, they must show that there is a genuine issue of material fact

via their own admissible evidence (2) Moving party entitled to judgment as a matter of law (substantive law issue)

o Just the substantive legal issue of the motion, has nothing to do with Rule 56 i.e., D argues P’s claim is barred by res judicata (claim preclusion) and files for SJ

because they add something to the complaint (facts from Case 1). This is a purely legal issue – no need to mention Rule 56

← Process Rule 56(b) – Party may file a motion for SJ at any time until 30 days after close of all discovery

←← Motion

Moving party must show some basis that there is no issue of material fact through submission of evidence, i.e. affidavits, testimony, interrogatories, documents properly supported and certified

o All evidence considered is in written formo Complaint is not evidence/doesn’t stand is place of evidenceo Circumstantial evidence is not inherently unreliable as long as it is a reasonable inference- can

create genuine issue of material fact

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Defendant has easier time for summary judgment because only has to show one element of the claim, whereas plaintiff has to show no genuine issue of material fact for every single element.

Moving party must show no genuine issue of material fact; nonmoving party proves opposite, submit evidence to prove that jury is necessary, conflicting evidence

Burden of production v. persuasion o Burden of Production- which party has duty to supply the evidence?

Plaintiffs must shoulder this burden as to the elements of a claim P must get past burden of production to evade summary judgment for

D Defendant has duty to put forward evidence re: defenses, i.e. contributory negligence

o Burden of Persuasion/Proof – degree of certainty the fact finder must have before it can find for one side

In most states- P has this burden o However, depends on standard of proof. 95% of civil cases, standard is preponderance of the

evidence (50%+1) Some cases- certain facts must be shown by higher standard- clear and convincing

evidence (66% likely) Criminal cases- highest standard- proof beyond a reasonable doubt

o Anderson- when burden of persuasion moves to higher standard, so does burden of production

← Summary Judgment – Rule 56(c) Most Summary Judgment motions do NOT involve Rule 56 because they only involve a legal dispute.

Therefore first ask if this is a Rule 56 issue or just a legal issue (i.e., claim preclusion); then discuss Rule 56 if the question is whether there is a genuine issue of material fact

o 1. Has moving party established its burden? A. Identify material fact

Materiality is determined by the substantive law – only disputes over facts that might affect outcome of the suit

If moving party wants to win SJ, they have to show that for every element, there is no genuine issue of material fact

If non-moving party wants to win SJ, they only have to prove one issue of material fact for one element of a claim

B. Demonstrate no genuine issue

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If evidence is such that a reasonable jury could return verdict for non-moving party

Do this through admissible evidence – Can use an affidavit; NO pure hearsay (Rules of Evidence come into play here)

o 2. Responding party A. Demonstrate genuine issue OR

Must do more than just point to complaint B. Prove that issue is not material (i.e., they can win even if they lose on this issue)

←← Hypotheticals on pp. 485

(a) – D has a witness affidavit (meets their burden), but then P shows her complaint refuting that? o No! Complaint is not admissible, it’s an unsworn statemento Doesn’t meet P’s burden, we grant SJ

(b) – Same thing but P responds with a witness affidavito Meets P’s burden, NO SJ

(c) – Same as (b), but D submits 15 affidavits in its support – o Still up to jury to decide, no SJo It’s not up to judge to evaluate credibility of evidence at SJ stage

(d) – D has witnesses, P responds with their own affidavit saying they didn’t see the light but saw stopped cars in same lane of traffic as D

o It’s still jury’s job to evaluate credibility of witness, even it’s by definition biased – no SJo A complaint is not a sworn statement (no penalty of perjury); affidavit is held to higher standard

(e) – D submits one affidavit; P responds with affidavit of one witness who didn’t see the color of the light but saw that cars had stopped –

o This isn’t direct evidence, it’s circumstantial evidence but this is a reasonable inquiry and would still go to jury

(f) - P submits own affidavit for his own motion, but D submits nothing except saying that he wants to challenge P’s credibility.

o If D can successfully challenge credibility, this may be a zero-evidence case. o If P has burden of persuasion (P has moved for sum judgment), all D has to do is offer credible

reason why P’s evidence should be disbelieved. This is enough to defeat sum judgment.

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←← Anderson v. Liberty Lobby (1986)

Anderson published two articles portraying Liberty as neo-Nazi. They filed a libel action. Standard for libel is from NY Times v. Sullivan in which for a libel suit by public official, P must show D acted with actual malice, by clear and convincing evidence. Anderson movers for SJ saying Liberty are public figures and must prove their case by clear/convincing evidence

Issue – Whether clear/convincing evidence requirement must be considered by a court ruling on a SJ motion?

Rule o “Materiality” is determined by substantive law – only disputes over facts that might affect

outcomeo “Genuine” – If evidence is such that a reasonable jury could return verdict for nonmoving party

Holding - During summary judgment, court must use standard of persuasion applicable at trial. o Judge is not making judgment herself: simply asking whether a reasonable jury, based on

evidence, could find for the non-moving party. o Assuming that jury finds all credibility issues for non-moving party. o Clear/convincing standard of proof should be taken into account in ruling on SJ motions, but

credibility determinations, weighting of evidence, drawing inferences are jury functions The standard mirrors the standard for directed verdict – if reasonable minds could differ as to evidence,

a verdict should not be directed. SJ and DV are substantially the same, just procedurally different Brennan (dissenting) – How do your determine SJ on clear/convincing standard f the judge is not

weighing the evidenceo At SJ all we should be worried about is if there is conflicting evidence

←← Celotex Corp. v. Catrett (1986)

Catrett sued Celotex alleging that her husband died due to exposure from their products that contained asbestos. Celotex moved for SJ saying Catrett didn’t produce evidence that their product was the proximate cause of injuries – she didn’t have any witnesses who could testify about her husband’ exposure. Celotex has no evidence- uses, as evidence, the fact that P did not produce any evidence at the discovery request.

Issue – What’s the appropriate standard/burden on parties in a SJ motion?o If D thinks that P has no evidence to prove a necessary element of a claim, how does D get that

before a judge D’s Argument – We want P’s proof. We aksed for evidence and P can’t prove anything P’s Argument – D needs to introduce its own evidence. Support SJ motion with additional evidence

o Court says no - a party seeking SJ always bears the initial responsibility of showing absence of genuine issue of material fact, but there’s no requirement that the moving party support its motion with evidence negating the opponent’s claim

Where the nonmoving party will bear burden of proof at trial (Plaintiff), SJ motion may be made solely on reliance on pleadings + evidence on file. Nonmoving party must go beyond pleadings and stuff on file to designate specific facts showing genuine issue for trial

In a no evidence case, D is not required to offer affirmative testimony from its own witnesses/documents that show the non-existence of the necessary fact. It is sufficient in a no evidence case that they have asked plaintiff in mandatory discovery that such discovery requests were made and in response, P offered nothing. If this is the case, D has met its initial burden of showing there’s no genuine issue of material fact.

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o Then, P gets a second bite to produce evidence (they may be sanctioned for failure to produce the first time). If they produce evidence that establishes a genuine issue, it can go to trial

o If P doesn’t have evidence yet, they can move for more time under Rule 56 D is likely to file the motion early in the case so P hasn’t come up with enough evidence

in discovery, hoping to catch P unprepared Holding - Party can support a summary judgment motion with materials that show that the party who

has the burden of proof on an essential fact cannot prove that fact. Record suggested that P had no proof of exposure to Celotex’s products. If Celotex demonstrated that there was no evidence to support P’s claim of exposure, and P did not produce evidence tending to prove disclosure, D could get summary judgment without presenting any evidence to show lack of exposure.

←

Motions for Judgment as a Matter of Law (JMOL) Directed Verdict – Pre-verdict JMOL

o If court determines there is insufficient evidence it may decline to submit the case to the jury and instead enter judgment

JNOV – Post-verdict JMOLo If jury returns a verdict for which there is insufficient evidentiary support, the court may enter

judgment notwithstanding the verdict Standard for JMOL is the same as SJ – Whether a fair-minded jury could return a verdict for

non-moving party on the evidence presentedo Old test is “Scintilla Test” – If there’s even a scintilla of evidence that support non-moving

party’s claim, it goes to the jury o Rule 50 – Substantial Evidence Test – Could a reasonable jury find for non-moving party based

on all evidence at trial Judge is NOT supposed to weigh the evidence here – Any issue of credibility it up to the jury to decide

o In a new trial motion, the court CAN look at evidence if the verdict went against the great weight of the evidence at trial, but the remedy is just a new trial

← Constitutionality ← 7th Amendment – “In suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court, than according to the rules of the common law”

Pre-Verdict JMOL (Directed Verdict) had a predecessor in common law, so that’s deemed constitutional (Galloway (1943))

Renewed JMOL (JNOV) is trickier because the amendment clearly says “no fact tried by a jury shall otherwise be reexamined than according to the rules of common law”

o In Redman (1935) – Court upheld JNOV where D had moved for Directed Verdict and trial court submitted case to jury, but reserved its ruling on the motion – theory was that JNOV was a delayed ruling on the motion

o Post-Verdict (Renewed) JMOL can ONLY be renewed if there was a prior motion for pre-judgment JMOL (Directed Verdict)

This is HUGE malpractice bait! Most of the time, the judge won’t grant the pre-verdict JMOL and let it go to the jury.

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o If the judge turns it over pre-verdict and it gets appealed, a whole new trial occurso If judge grants JNOV and its overturned, the jury verdict can always be reinstatedo It also adds legitimacy if jury and judge come to same conclusion; it makes the case reversal-

proof← Timing

JMOL (DV) can only be raised after a party has been fully heard on an issue. If P wants to move for DV, it has to wait until D presents its case in chief.

o D can move for JMOL after P presents her case in chief JMOL must be made at any time before case is submitted to jury Motion must specify judgment sought and law/facts that entitle movant to judgment Judge CANNOT enter JMOL sua sponte. It must be from a pre-verdict motion It’s unclear if an oral motion suffices. Post-verdict (renewed) motion for JMOL must be filed within 28 days after judgment The only way to appeal a jury verdict is to appeal a judge’s decision to deny JMOL, so if you plan on

appealing a jury verdict, you must file JMOL← Rule 50 – Judgment as a Matter of Law; Related Motion for a New Trial

(a) Judgment as a Matter of Law (DV)o If a party has been fully heard on an issue during jury trial and court finds that a reasonably jury

would not have a legally sufficient evidentiary basis to find for the party on that issue, court may:

Resolve the issue against the party; and Grant a motion for JMOL against the party on a claim or defense

o A motion for JMOL may be made at any time before the case is submitted to the jury. Motion must specify judgment sought and the law/facts that entitle movant to judgment

(b) Renewing the Motion After Trial; Alternative Motion for New Trial (JNOV)o If court does not grant JMOL under 50(a), court is considered to have submitted the action to

the jury subject to court’s later deciding legal questions raised by the motion. No later than 28 days after entry of judgment, movant may file renewed motion for JMOL and may include an alternative or joint request for a new trial under Rule 59. In ruling on review motion, court may

Allow judgment on verdict, if jury rendered a verdict Order a new trial Directed entry of JMOL

(c) Granting the Renewed Motion; Conditional Ruling on New Trial Motion

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o If court grants renewed motion for JMOL, it must also conditionally rule on any new trial motion in case judgment is later vacated or reversed. Court must state grounds

o Conditionally granting the motion for new trial does not affect judgment’s finality; if judgment is reversed, new trial must proceed unless appellate court orders otherwise. If motion for new trial is conditionally denied, appellee may assert error in that denial; if judgment is reversed, case must proceed as appellate court orders

(d) Time for Losing Party’s New Trial Motiono Any motion for new trial under Rule 59 must be filed no later than 28 days after entry of

judgment (e) Denying JMOL; Reversal on Appeal

o If court denies JMOL, prevailing party may, as appellee, assert grounds entitling it to a new trial should appellate court conclude that trial court erred in denying the JMOL motion. If appellate court reverses judgment, it may order new trial, direct trial court to determine whether new trial should be granted, or direct entry of judgment

←← Lavender v. Kurn (1946)

Haney (his estate managed by Lavender) worked on a railroad. It’s unclear how he died but there are two theories: (1) he was struck by a hook negligently hanging from a railroad car; (2) he was murdered by hoboes. Jury got instruction that if train company maintained hook or maintained an unsafe and dangerous place for Haney to work, train company was negligent.

o Jury said train killed him. Missouri Supreme Court said that was too speculative and no reasonably jury could find for P because it was just a guess

Issue – Was it right for Supreme Court of Missouri to grant JMOL? Holding – SCOTUS reinstated the verdict. Juries are there to assess evidence, even if there are gaps in

the evidence o Only when there is a complete absence of probative facts to support jury’s conclusion does a

reversible error appearo It seems implausible that he was struck by hook but it is still plausible – a really implausible

story is enough to support a verdict. But if there’s no evidence, then it has to be JML

New Trials If there is sufficient evidence that JMOL is inappropriate but the judge disagreed with the jury’s verdict,

Rule 59 gives the judge the power to intervene by declaring a new trial o In doing so, the judge doesn’t substitute his view of the evidence; it will be left to a new juryo He can weigh evidence, but not substitute his judgment of facts/credibility for that of a jury

Jury must have seriously messed up, it can’t just be that judge disagrees If the verdict is against the great weight of the evidence, remedy is a new trial, not JMOL

o New Trial is the “safety valve” if the verdict is against the great weight of the evidence Unlike JMOL, Judge CAN grant New Trial motion sua sponte (59(d)) Timing (59(b))– Motion for new trial must be filed no later than 28 days after the entry of

judgment

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o Same time limit as for JMOL In ruling on the new trial motion, the judge may consider the credibility of the witnesses

o Unlike JMOL, where judge assumes truth of evidence for non-moving partyo Standard for granting New Trial is less stringent than for JMOL but it’s defended because the

new jury not the judge, will reconsider the case if the motion is granted Two grounds for new trial :

o Errors in the trial process – improper admission/exclusion of evidence, jury instruction, etc. Appellate Court reviews de novo

o Verdict is against the great weight of the evidence Appellate Court reviews abuse of discretion standard Very rarely does an appellate court overrule a trial judge when he denies New Trial

motion because they weren’t there to hear the evidence You usually file a pre-verdict JMOL. If you lose that you file the post-verdict JMOL and motion for a new

trialo If you win the post-verdict JMOL, great! It’s then up to other side to appealo The decision to grant a new trial is NOT considered a final judgment and therefore is NOT

subject to appeal. Of course if judge denies new trial it is appealable because it’s end of case 50(c) - If judge grants JMOL, he should also grant the new trial motion conditionally

because if JMOL is reversed on appeal, a new trial ensues A party wanting to protection option of new trial should make sure the court

rules on this conditional new trial motion because if they don’t and JNOV is overturned by appellate court, they’re screwed

If appeals court upholds JMOL, great. If they reverse JMOL, new trial ensues Some state courts do allow for interlocutory appeal from grant of new trial

You don’t appeal a jury verdict. You appeal trial court’s denial of JMOL and/or denial of a new trial motion

At the “new” trial, parties are prohibited from mentioning it’s a new trial. The jury ideally shouldn’t know it’s a “new” trial

← Conditional New Trial Motions Judge can grant partial new trials in appropriate cases, like if damages are too excessive (contrary to

weight of evidence)o The test is whether the size of the verdict “shocks the conscience”

Remittur – Amount of verdict is excessive. The District Court can offer P the option of accepting a lesser award or a new trial

o Hetzel v. Prince William Co. (1998) – This is OK as long as P gets new trial option

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Additur – Amount of verdict is too low. Court can offer D the option of a higher verdict or new trialo Dimick (1935) – Additur is unconstitutional

Not well established at Common Law, may be a deprivation of property(?) Peterson thinks this is BS! Additur and Remittur are the same thing

o BUT, additur may be constitutional in State Courts, because the 7th Amendment wasn’t incorporated to them

← Rule 61 – Harmless Error A new trial may not be granted except for errors in the trial which are serious enough that they affect

the substantial rights of the parties. Unless the trial judge believes that the error might have made the case come out differently, she cannot grant a new trial motion

← Dadurian v. Lloyd’s of London (1st Cir. 1986) Dadurian claimed the loss of jewelry he allegedly owned under a Lloyd’s insurance policy. Lloyd’s

believed the claim was fraudulent and wouldn’t pay. He allegedly bought jewelry from Howe and paid and cash, but didn’t have receipts. He purchased the maximum insurance coverage and then claimed armed robbers stole the jewels. Jury ruled for Dadurian, Lloyd’s moved for JMOL or new trial in alternative. District court denies and Lloyd’s appealed

Issue – Whether P satisfied his burden of persuasion on whether he bought the jewelry? On Purchase of Jewelry there is conflicting testimony – it can’t justify a new trial alone because a

reasonable jury could side with P On Source of Funds the evidence was more clearly against P Holding – Jury’s verdict was against weight of the evidence; remand for new trial

o If the verdict was against the clear weight of the evidence regarding lying about the source of cash, then it’s inextricably tied to the other issue of his purchase of the jewels. If he lied on one, insurance agreement is cancelled so both issues must be retried

o No JNOV because Lloyd’s had the burden of proving Dadurian was lying and the appellate court is reluctant to direct a verdict for a party having burden of proof – and it involves credibility which is a jury question

NOTE: Very rare for an appellate court to overturn trial court’s denial of a new trial motion

Other Techniques for Controlling Juries← Admissibility of Evidence

Rules allow judge to exclude evidence “where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

← Jury Instructions Errors in jury instruction are common basis for appeal Rule 51 governs instructions – can be given before or after final arguments

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o Before – Lawyers can argue based on the instructionso Mostly its given after though because judge wants last say

51(a)(1) – Each side must give proposed instructions to the judge Judge decides it based on his own reading of the law. If you disagree with the judge’s decision, you

must object BEFORE the instructions are given to preserve it on appealo 50(c) Must object before instruction goes to the jury or it’s waived

Verdict Forms 3 types of verdicts

o General Verdict- find for P for X amount of money Most common

o 49(a) Special interrogatories- based on the answers to these questions, judge will find result and issue verdict. 49(a)

Court asks jury to decide factual questions, but it is not asked to decide who wins or loses

Way to control juries, preferred by those who are skeptical of jury systemo 49(b) Compromise between the two: Special interrogatories with general verdict. 49(b)

What happens if they don’t match? 3 options. 49(b)(3) Use special interrogatories (preference for these) Send it back to the jury for reconsideration Order a new trial CANNOT take a general verdict over

← Judge Trials - Rule 52 Different, especially with respect to rulings on evidence (more lenient) More restrictions regarding verdicts that juries

o Must write down their findings of fact and conclusions of law Often ask litigants to write proposed findings and conclusions Less deference given if judge uses litigants’ findings for his opinion (can tell this from

looking at the record)

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o No special interrogatories for judges ←← Juror Misconduct

Common law rule was that affidavits of jurors could NOT be used to impeach their verdicto Insulate review because of (1) need for stability of verdicts; (2) need to protect jurors from

fraud/harassment by litigants; (3) prevent prolonged litigation; (4) prevent verdicts from being set aside because of subsequent doubts of juror; (5) concept of sanctity of jury room

Modified Iowa Ruleo Let in extrinsic evidence that can be objectively corroborated or disproved

Juror conducted investigation outside of courtroom, illegal method of reaching verdict, etc.

o Keep out intrinsic evidence that cannot be corroborated or disproved Things known only to an individual juror like his thought processes, motives, etc.

o Tanner v. US (1987) – Evidence that jurors were high/drunk is NOT admissible because it’s the same outside influence as if they had a food virus

But Florida Sup. Ct. said evidence that juror was racist WAS admissible because they violate guarantees of fair/impartial jury and equal protection

o McDonough Power (1984) – Incorrect voir dire answers provide a basis for a new trial in limited circumstances

To obtain a new trial, party must first demonstrate that juror failed to answer honestly a material question on voir dire, then further show that a correct response would have provided a valid basis for a challenge for cause

Motion to Set Aside Judgment – Rule 60(b) A party failing to make a timely motion for JMOL or new trial will raise this motion IT’s NOT an appeal, it’s made to trial court Granted EXTREMELY rarely

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← III. Ascertaining the Applicable Law

Swift , Erie , and Choice of Law in Federal Court What law applies in federal diversity cases?

o In Federal Question cases, it’s by definition the federal law Rules of Decision Act (RDA) 28 USC §1652 – Laws of the several states, except where federal law

provides, shall be regarded as the rules of decision in civil actions in federal courto Under the Supremacy Clause, Congress can preempt state law in an areao Where there is no preemptive federal law, state law applies on all substantive matters, but not

all procedural matters o Question becomes – what is defined within “Laws of the several states”?

← Swift v. Tyson (1842) Justice Story believes that “laws of several states” referred only to state statutes and established local

usages of the state – NOT judicial interpretation (common law) It’s not common law because court-made precedent can be overturned The federal judge’s job was the same as that of any other common law judge – to choose the right rule,

rather than to follow the rule that some other judge (especially a “lower” state court judge) deemed the right one

Court makes a differentiation between acceptable common law for state (local law = property, statutes) versus general common law (federal common law)

Rationale – Encourage uniformity!o Horizontal Uniformity - State judges will adopt federal common law rulings because they come

from the “all knowing” federal judges – this proves WRONGo Vertical Uniformity - Other federal judges will follow the precedent of previous federal judges –

this doesn’t happen either! It’s a natural law approach – the law can’t mean one thing in Rome and another thing in Athens

o Natural Law exists independent of any person so it was court’s job to perceive what that natural law is and apply it. Federal judges are ‘better” at perceiving what that natural law is so they should do it and the state judges will follow

← Effects after Swift : The law could still be one thing in Rome and another in Athens if the state legislatures so declared it

o Line between what is “local” vs. “general” law also become blurred Forum Shopping

o Black & White Taxicab v. Brown & Yellow Taxicab – Brown sought to enforce a K with the railroad, giving it the exclusive right to pickups at a train station in Kentucky. Aware that KY court didn’t enforce such Ks, Brown reincorporated in Tennessee, creating diversity with Black.

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It then brought suit in KY FEDERAL Court to enjoin Black from interfering with its K. Federal Court followed other federal courts in holding that the monopoly was unenforceable

SCOTUS said this was OK because federal district court had authority under Swift to reach its own conclusion on the common law issue of whether exclusive Ks can be enforced

o Thus, by invoking diversity jurisdiction, Brown was able to choose a substantive rule of law that upheld rather than barred the K. Had they sued in KY state court, the court would have followed KY precedent in saying the K was unenforceable

o Justice Holmes’ dissent in Taxicab trashed the “natural law” rationale that there is one transcendent body of law. The common law of a state is the law of that state!

The law can be one thing in Rome and another in Athens because the people who make the laws in Rome and in Athens are different

←←← Erie v. Tompkins (1938)

Tomkins (PA) was injured by an Erie (NY) train. The issue is over duty of care. PA law required that RR act willfully or negligently. Federal district court followed Swift’s logic in declaring it not bound by PA law and instead followed federal decisions which held that RR owed a duty of care.

o NOTE – Neither party argued that Swift should be overruled. Erie argued federal court should follow PA law because it was a matter of “local usage” rather than general common law

Erie didn’t want Swift overturned because usually federal courts were pro business Issue (Raised by the Court, not the parties) is whether Swift should be overruled – They said yes! (1) Swift didn’t create a uniformity of general common law among the states that it

intendedo No vertical/horizontal uniformity. State judges didn’t follow federal precedent, the followed

their own views (2) Federal practice of making common law led to grave discrimination in administration of

justiceo Taxicab case – Blatant forum shopping!

It allowed an out-of-state plaintiff to choose a different rule of substantive law because he could choose federal court

If diversity jurisdiction to prevent prejudice against out-of-staters, Swift introduced discrimination in favor of the out-of-stater. They could bring it in federal court and the in-state defendant is stuck and can’t remove it to state court

(3) Swift doctrine is unconstitutional since it authorized federal judges to “make” law in areas in which the federal government has no delegated powers

o In choosing the rules of decision, the federal court must look to the body with authority to make those rules. When it comes to common law matters not within federal government’s delegated powers, that body is the state

o Constitution preserves power and autonomy of states! There needs to be something in Constitution that authorizes Congressional power to tell

courts to make general federal common law (the commerce clause, for example) What’s wrong here is that the common law used was general, instead of preemptive

Preemptive common law is OK under the Constitution

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o The court is NOT saying the RDA is unconstitutional, just the Swift interpretation of it Holding – The Rules of Decision act requires federal courts to apply state law in diversity cases,

whether judge-made or statutory, rather than following their own perception of the best ruleo Grant of jurisdiction over diversity cases in Art. III is NOT a grant of authority to displace state

substantive rules of decision, but only to apply those rules in a federal, presumably neural forum

Erie is a huge triumph for legal realism and positivism over natural lawo Realism – Law is not abstract rules, but rather is the reality of what courts doo Positivism – Reject transcendent natural law and believe ALL law is the command of a

sovereign. There is no “general” law ← Note:

The year after Erie was decided, Congress passed the Rules Enabling Act (REA), authorizing SCOTUS to create a uniform set of procedural rules for federal courts (FRCP). Thus, before 1938, federal courts applied state procedural rules but federal common law matters of general law; after 1938, it was the reverse

← Constitutional Bases of Erie Swift – Federal courts apply state law where there is a statute on point, or it’s “local law”

o If it’s “general law”, RDA is silent and federal courts can create federal common law Erie – This authority to create general federal common law is unconstitutional

But Erie involved a RR, which Congress can regulate via the Commerce Clause. If Congress can legislate in this area, why can’t courts act in the area to create common law?

o Congress has legislative authority, courts’ judicial authority is not as broad Separation of Powers – States are represented in Congress, not in courts

The argument in favor of letting courts create general federal common law is that diversity jurisdiction carried with it the authority to create it – but the founders decided not to do this!

← Erie leaves us with many streams of cases: (1) What state law does a federal court use?

o Choice of law ruleo Klaxon – In diversity cases, court must apply the choice of law rule of state in which it sits

(2) How does a federal court know what the state law is?o [See Other Streams that Flow from Erie]o Use the rule that you think the supreme court of that state would use today

(3) Substantive, Preemptive Federal Common Law

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o We don’t get into this here but there is some federal common law which derives from some source of authority (Constitution, statute)

o This differs from Erie because it’s preemptive; Erie bars general common law (4) Procedural Federal Common Law

o No substantive general common law but there is procedural lawo This is an implied power under Art. III – Federal Court system couldn’t work properly without

setting rules of procedureo Difficult distinction between what is substantive vs. what is procedure

←

Conflict Between Enacted Federal Law and State Law Erie requires federal courts to apply state law to issues upon which there is no federal lawmaking power

o Apply state law on substantive issueso But what is substantive and what is procedural?

Dunlap (1939) – Which party had burden of proof on a question of title to land? o SCOTUS said burden of proof “relates to a substantial right” so Erie mandated state lawo At its most extreme, this would mean that federal courts would have to abandon FRCP in

diversity cases and apply the entire procedural law of state in which it sat York (1945) – Whether a federal diversity court must apply state statute of limitations or its own flexible

“latches” doctrine?o Court said state limitations statute must be applied in order to implement the “policy” of Erie

that the outcome in federal or state cases should be the sameo Outcome Determinative Test – If using federal practice would significantly affect result of

litigation, differently than would state procedure, court must apply state procedure But Erie said federal court must apply state law because neither federal court not Congress has he

authority to create the kind of law in question (substantive)o York and Dunlap both involves situations was there was federal authority to create separate

rules for Federal Courts ← Constitutional – Art. I § 8 – Congress has power to establish lower federal courts and to make laws “necessary and proper” for exercising that power

Where Erie said follow state law because there can be no other law, York said follow state law, even where they can be federal law, if it will further the policy of uniform outcomes in state and federal court in diversity cases

But everything could really be considered outcome determinative!← Hanna v. Plumer

Plaintiff served process on defendant, the executor of a MA estate, in accordance with FRCP 4(d)(1). But a MA statute required in-hand service upon the executor. If service was valid, case would go forward, if not, it would have to be dismissed.

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Issue – Was federal court required to apply MA rule or FRCP for service? D’s Argument – York says use state law if doing so will affect the outcome, and here is clearly will Part 1 (Rules of Decision Act Prong) – Conflict between two service rules under a modified

outcome-determinative testo Whether a federal procedure is outcome determinative must be viewed in light of the twin aims

of Erie : (1) Prevent Forum Shopping (2) Prevent Inequitable Administration of the Laws

o If the federal rule is predictably outcome determinative at the beginning of the suit so as to cause forum shopping, then it’s substantive and court should use State law

o Here, it’s doubtful that a plaintiff would choose federal curt over state court simply to avoid serving the defendant in person, since the effort required to do so is only marginally greater than required to serve under federal rule.

Part 2 (Rules Enabling Act Prong) – When an enacted Federal Law (FRCP) conflicts with state lawo Rules Enabling Act (28 USC §2071-72) authorizes SCOTUS to “prescribe general rules of

practice and procedure for federal courts” Advisory Committee appointed by SCOTUS drafts rules, promulgates the to SCOTUS,

submits to Congress for 6 month review before taking effecto This plus Constitutional authority suggests that Congress and the Court have broad

constitutional authority to promulgate any rule that is “arguably procedural”o But for FRCP, Rules Enabling Act says “such rules shall not abridge, enlarge, or modify any

substantive right” Holding – FRCP 4(d)(1) neither exceeded the Congressional mandate in the Rules Enabling Act nor

transgressed Constitutional bounds. The FRCP should have been applied by district court ← Test

Two ways to interpret procedural vs. substantiveo Enacted federal law (statute/FRCP) vs. state law (below)o Federal common law different vs. state law (in Conflict Between Federal Common Law and

State Law) When doing the analysis, always start with the enacted prong. Then say “assuming I’m wrong and the

enacted law does not preempt state law…” then does the federal court have the power to make up a procedural common law rule (one that exists or that can be made up)? - common law analysis

←← Enacted Law (Rules Enabling Act Prong) – Not really the Erie doctrine because Erie had nothing to do with enacted law. It has to do with Supremacy Clause and Preemption.← -If there’s a federal directive on point, it trumps the state law as long as it is valid

(1) Does the Federal law preempt the State law? (2) Is the federal law valid (arguably procedural)?

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o (a) Constitutional?o (b) If FRCP, does it violate the Rules Enabling Act (abridge, enlarge, or modify a substantive

right)?←← (1) Does the Federal law preempt the state law?

Is there any federal law that would not work right if the state law were applied?o He’ll ask if it conflicts with something we’ve studied (discovery, SJ, Jury Trial rule, etc.)

Courts will sometimes avoid this analysis by deciding the state provision does not conflict with federal statute or rule

o Walker – FRCP 3 does not conflict with limitations period because the rule provides that a suit is commenced by filing, it’s not intended to govern when the limitations period starts

Direct conflict – Federal rule says X, state rule says Y If a rule is discretionary, and state law takes away that discretion, then there’s a conflict

o Burlington Northern - FRCP says penalty may be imposed at judge’s discretion; AL law say 10% fine for losing party filing an appeal

This conflicts! The state law would take away that discretion, so federal law applies Timing Changes

o State rule says D can file summary judgment no sooner than 3 months after P starts discovery. Rule 56(f) says D can file anytime after 20 days and P may ask for additional time.

o This conflicts because the rule addresses when/how you get discovery after a SJ motion. Rule 16 gives judges management discretion over timing of cases; Rule 26 deals with timing of motions – FRCP intends to say everything there is to say around timing SJ and pretrial motion, it preempts the area

Regulation of discovery/trial proceedingso Federal rule says malpractice cases must have 2 witnesses that prove gross negligence. State

rule says that there must be testimony at trial that establishes regular negligence. Conflict also likely where relevant federal provision was meant to occupy the field, or where applying

state rule would demonstrably impair the operation of the cognate federal provisiono Federal labor law says employees are forbidden from a, b, c, but doesn’t say anything about x,

y, z. State law makes x, y, z, illegal also. Employer will bring suit and argue that federal law preempts state law. Even though federal law didn’t say anything about x, y, z, Courts hold that the federal regulation was intended to say everything that there is to say about what employers cannot do in this context. Anything that federal law doesn’t mention is allowed.

i.e. Union organizing activity- meant to be wholly governed by federal regulation There can be more than one rule that conflicts – explore them all!

←← (2) Is the Federal Law Valid

(a) – Constitutional?

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o There’s a broad source of Constitutional authority (Art. I, Art. III) It’s valid if it’s arguably procedural Enacted law can occupy more of the “gray area”

(b) For FRCP Inconsistent with Rules Enabling Act?o May not abridge, modify, or enlarge a substantive right

Rule was considered by the Advisory Council, adopted by SCOTUS, waited for 6 months for Congress to do something - there’s a strong presumption of legitimacy

It’s not surprising that no rule has ever been struck down, given the process used to create them

←

← Conflict Between Federal Common Law and State Law Common Law (Rules of Decision Act Prong) – This does involve Erie

Whether a federal procedural rule is outcome determinative, viewed in light of the twin aims of Erie :o (1) Prevent Forum Shopping at the outset of the lawsuito (2) Prevent Inequitable Administration of the Laws

If it’s predictably outcome determinative, there’s a bright line implication that it’s substantive and court should use state law

←← (1) Prevent Forum Shopping at Outset of Lawsuit

The question isn’t is one rule “better” for the plaintiff, the question is, is the rule so predictably better that at the beginning of the case, the plaintiff will choose one forum over another?

o Yes - If the rule encourages forum shopping, then it’s substantive and the federal court CANNOT make common law on it.

York – Statute of Limitations is substantive in diversity cases o No - If it does not encourage forum shopping, then it’s procedural and court CAN make law

Hanna – Rules governing service are procedural←← (2) Prevent Inequitable Administration of the Laws

Don’t worry about this, just mention it’s part of the test

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SCOTUS doesn’t really know what this means ←←←← Notes:

There is a greater legal authority for enacted law to go further than common law because Congress can add to the judicial power through Art. I § 8

There’s a presumption of validity for enacted law because the pedigree of the rule has been vetted

← Hypo - The standard for judge granting JMOL is only if a reasonably jury could find for the nonmoving party (substantial evidence test). Suppose a state that says they value plaintiff’s right to prevail and want to use scintilla of evidence test (P can defeat JMOL with scintilla of evidence)

Before FRCP, P would choose the forum with the scintilla test, so maybe this encourages forum shopping

After FRCP, it’s federal enacted law and the federal rule (substantial evidence test) is arguably procedural

Point is – moving from common law to enacted law changes the analysis ←← Gaspirini v. Center of Humanities (1996)

NY law uses a “materially deviates” standard for appellate review of jury verdicts, whereas the 7th Amendment states that “jury verdict shall be preserved”. After an award that the defendant felt was excessive, they move for new trial under 59(a)

Issue – Would application of “deviates materially” standard in federal district court for new trial unfairly discriminate against citizens of NY or cause forum shopping? What’s the proper standard of appellate review?

Appellate Review standard o 7th Amendment requires “Abuse of Discretion” standard – Appellate court can’t second guess

jury verdicts except as was true at common lawo The NY standard uses a “materially deviates” standard which is much more stringent than at

common lawo Thus, the 7th Amendment preempts the NY Law. 7th Amendment is constitutional because it is

the Constitution – You can’t be more aggressive in overturning a jury verdict than an appellate court could have been in 1791

On a Test - BUT if you’re wrong and it doesn’t conflict, you must analyze from a common law perspective to see if it would cause forum shopping

Trial Court Standard for New Trial Motion o Federal Standard for jury verdicts (damages award) = shocks the conscience; NY = “differs

materially”o Enacted Federal Law – does it preempt state law?

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59(a)(1)(A) – but does “Shock the Conscience” come from FRCP? Majority thinks there’s a big gap and the gap must be filled with common law

(not a federal rule) Scalia disagrees, believing Rule 59 governs this and preempts state law

because the rule comes from FRCP because when the rule was adopted, it was based on the shock the conscience standard

o No bright line – it’s hard to decide where you end interpreting an unclear written rule and begin using common law rule

Say there’s an ambiguity as to whether it’s enacted or common law, then explain both and choose one!

o Assuming Common Law – see if it’s outcome determinative (forum shopping) Majority – It is outcome determinative because the shock the conscience standard

means a judge is less likely to overturn the verdict than they would with a materially deviates standard

Peterson disagrees - The question isn’t is one rule “better” for the plaintiff, the question is, is the rule so predictably better that at the beginning of the case, the plaintiff will choose one forum over another?

Holding – New Trial motion standard is “deviates materially” (state rule); but the appellate review standard is abuse of discretion

←

← The Other Streams that Flow from Erie ← Federal Common Law

Erie said no general federal common law, but there are areas of unique federal interest where there is federal common law

o Areas where there’s an overwhelming need to have one federal rule and where Congress has not provided that rule

o Needs for national uniformity must outweigh the need for uniformity within a state Treated like a statute and preempts state law

←← Federal Law in State Court

States have concurrent jurisdiction over most federal causes of action, except where Congress gives federal courts exclusive jurisdiction

Under Supremacy Clause a state adjudicating a federal claim is required to apply all federal law←← Determining the Content of State Law

Use choice of law rules of the state in which the court is sitting (forum state)o It will tell you which substantive law to apply (Klaxon)

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Erie said to apply the state law as decided by the state supreme court, but what if there are no decisions on the issue?

o Do what federal court believes the state supreme court would have done today Without this flexibility, Erie would have substituted one kind of forum shipping for

another – if your case was based on an old precedent, you’d go to federal court instead of state because the state can overturn it but the federal court cannot!)

The federal court is to look to all available data to make its best guess as to content of state law (trends in law, appellate courts in state, etc.)

If there’s no state law on point, a federal court CANNOT just refuse to hear the caseo Where a federal court is uncertain about state law, it can certify the state law issue to the state

supreme court This isn’t available in every state, and many times the state supreme court needs to

decide to hear the issue ← Deweerth v. Baldinger (2d Cir. 1994)

In a previous case, P sued D after D had a painting taken from P’s family in WW2. Trial court found for P but appellate court reversed, saying NY limitations law required “reasonable diligence” in locating stolen property, and P didn’t show that. Years later, in a different case, the NY Court of Appeals said the relevant NY limitations law did NOT require a showing of reasonable diligence, specifically citing the 2d Cir. as being wrong

Issue – Can the decision of a federal court assuming the role of the state supreme court be reversed after the state supreme court later clarifies the issue?

Rule – Erie does not stand for proposition that P is entitled to reopen a case that has been closed for years, in order to gain the benefit of a newly announced state court decision

o P specifically decided NOT to bring her case in state court originallyo A subsequent change in state law does not provide grounds for relief under Rule 60(b)(6),

requiring “extraordinary circumstances” to throw out a judgment Principle also applies in federal cases where SCOTUS has changed law

Holding – Nothing in Erie suggests that consistency must be achieved at the expense of finality. The second case can’t proceed and D wins

←←

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← IV. Respect for Judgments ← The whole field of Former Adjudication is called Res Judicata

Claim Preclusion (Res Judicata) – When a claim that has been litigated before between the same two parties will be barred from being relitigated

o Subsequent suits on the same claimo Applies to the entire claim, including matters not tried that could have been tried

Issue Preclusion (Collateral Estoppel) – Prevents relitigating particular issues that were actually litigated and determined in the first suit

o Subsequent suits on a different claim but on the same issueo Only issues actually litigatedo But if claim preclusion bars the second suit, there is no need to consider issue preclusion

Policy Justification – Efficiency! o Claim preclusion counsels claimants to seek all rights to relief in a single cause of actiono State interest in there being an end to litigation

Other way to preclusion something – preclusion by 13(a) Work through Claim Preclusion, Issue Preclusion, and Preclusion by 13(a)

← This is distinguished from other principles: Double Jeopardy – the Criminal form of res judicata with its own standards Stare Decisis – (1) Concerned with appellate pronouncements of legal questions, preclusion addresses

trial court determinations of law/fact; (2) Binds litigants in all cases within the jurisdiction, preclusion applies only to the particular litigants; (3) Court that issued precedent can overrule it, there’s less discretion with preclusion rules

Law of the Case – Issues decided within a particular action will not be relitigated in the same case before it’s finally determined

o Concerns same issue being raised multiple times in the same actiono This is less formal than issue preclusion as judge can depart from an earlier ruling

← Claim and Issue Preclusion are affirmative defenses! Burden is on party raising the defense ←← Test

(1) Whose Preclusion Law applies?

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(2) Analysis of Claim Preclusion – ALL elements (3) 13(a) Compulsory Counterclaim Rule (4) Analysis of Issue Preclusion – ALL elements (5) If it’s a case of Offensive Non-mutual Issue Preclusion

o (a) No mutuality requirement in federal court. Unsure if state court allows it, but for the purposes of the test, use federal law

o (b) Parklane Factors ←

← Inter-system Preclusion What preclusion rules apply if judgment is entered in one jurisdiction and a second case is filed in

another? 4 Situations – State to State; State to Federal; Federal to State; Federal to Federal Full Faith and Credit Clause; 28 USC §1738

o Full Faith and Credit Clause – Requires every state court to give full faith and credit to judicial proceedings of every state (covers only State to State)

o 28 USC §1738 – Requires every state and federal court to give full faith and credit to a judgment as it would receive in the judgment rendering state (covers State to State, State to Federal)

o Neither covers federal to state or federal to federal ←←← State to State

Full Faith and Credit requires a state to give effect to judgment in another state as it would its own judgment

o Court in Case 2 should use case 1’s preclusion law Majority rule is to give the same preclusive effect, but some states say you can give more

o You just can’t give less effecto Example – State A doesn’t allow nonmutual offensive issue preclusion but state B does. The

second court give more preclusive effect by allowing nonmutual offensive ← State to Federal

Functionally equivalent to State to State situation

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Marrese – Doctors sued professional association in state court, asserting violation of state law. They lost and sued in federal court under federal antitrust laws

o Lower court dismissed under claim preclusion, noting Ps could have brought both claims in federal court

o SCOTUS reversed for consideration of what law of judgment-rendering state would beo On remand, district court denied claim preclusion because the federal claim could NOT have

been joined in the state proceeding← Federal to State

Federal Question – No federal statute sets out preclusion law to be applied, so use Federal Common Law

o As mandated by Supremacy Clause Diversity – Because of diversity, the law that governs = state law. If the court sits in MD, use MD

preclusion lawo Semtek – Preclusive effect of a diversity judgment should be governed by federal common law,

but in most instances, there’s’ no need for a uniform federal common law rule and instead common law would borrow the preclusion law of the state in which the federal court sits

Constitution implies the ability to enforce its own judgments so they can make federal common law on it

But so as not to encourage forum shopping, as a matter of federal common law, court will incorporate state law into federal common law

o Preclusion law applied in case 2 is federal common law, but that incorporates the state preclusion law of the state in which the federal court in case 1 sat

← Federal to Federal Erie requires federal court to apply state substantive law in diversity cases. Restatement says federal

law should govern, but courts have disagreed on this ←← For exam: After the analysis of whose law applies, say, “However, assuming that X state preclusion law is the same as federal preclusion law…”←

← Claim Preclusion ( Res Judicata ) ← No person shall be vexed by the same claim twice. In the interest of the state, there is an end to every piece of litigation← Rule for Claim Preclusion

(1) Same parties (& same claimant) (2) Same Claim

o Restatement (same transaction or occurrence) Testo Primary Rights Test

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o Single Wrongful Act (3) Quality of Judgment

o (a) Finalo (b) Valido (c) On the Merits

← -Most courts believe claim preclusion to be a waivable defense. D must raise it or its gone ←← Doctrine (hypo): P sues D over a breach of contract claim.

Merger – If P wins and believes the verdict is too low, she can’t bring a second action against D for moreo Her claim was merged into the judgment she had won. The claim was extinguished and

replaced by a judgmento Of course, she could bring suit to enforce that judgment, but the claim itself is extinguished

Bar – If P lost, her claim was barred by adverse judgment so that no further suit could be brought on the claim

←← (1) Same Parties (& Same Claimant)

Parties to the two suits must be the same or in privity with one anothero The notion is from Due Process that everyone is entitled to their day in court

Categories of Privity Relationshipso (a) Nonparty may be bound by judgment if he was represented by a party to another case

Beneficiary represented by a trustee Guardian representing beneficiaries in his representative capacity

o (b) Substantive legal relationship between litigant and non-party Successive owners of property Someone who assigns contract rights

Most jurisdictions require that for claim preclusion to be applied, both cases must be brought by the same claimant against the same defendant

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o A can sue B, but if B has a claim against A, he is not bound by claim preclusion to state ito He is, however, bound by the compulsory counterclaim rule 13(a) if B’s claim arises out of the

same transaction or occurrence as A’s claim Does not apply for permissive counterclaims

o A sues B (breach of K); then A sues B (negligence) Under Rule 18, this is a permissive claim that doesn’t have to be joined But under claim preclusion, you have to join these claims or they’re merged (under

Restatement test)o Anomaly comes from D’s counterclaim

Claim Preclusion doesn’t require him to state the claim because it’s a different claimant But the rules (13(a)) state that it is compulsory because it’s same

transaction/occurrence If A gets into a car accident with B & C, Rule 20(a)(1) says A may decide to sue B & C together but he

doesn’t have to. If A sues B, he is NOT claim precluded from then suing C because it’s different partieso Also if he had to sue C with B, then it would turn permissive joinder in 20(a)(1) to compulsory

joindero BUT, this does NOT prevent the judgment in A’s suit against B from having some preclusive

effect – ISSUE PRECLUSION← (2) Same Claim ← Three tests:

Restatement of Judgments (Federal Courts) – A party who has asserted a right of relief arising out of a particular transaction or occurrence, must join all claims she has arising from it, or the omitted claims will be barred

o If it makes sense from the perspective of judicial economy to try the claims together, then they arise from the same transaction/occurrence

o The same transaction/occurrence test does NOT depend on the legal theory of the case o Reasoning – Efficiency!o MAJORITY RULE, it’s the legal realist approach

Primary Rights – A single tort resulting in property and personal damage gives rise to two causes of action, so recovery in one is NOT a bar to the other

o Reasoning – Rights are more important than efficiency o Formalistic approacho The negligent act of defendant in itself constitutes no cause of action, it becomes an actionable

wrong only out of damage it causes o Reilly (N.Y. 1902) – Injury to person and property were two claims because there are different

statute of limitations applied to both and P cannot assign a right of action to personal injury but can for property damage

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o The rule avoids hardship in cases involving insurance coverage. If you get in a car accident and insurer pays you for property damage (subrogate claim) and then you recover against D for personal injuries, restatement test would preclude the insurer from suing

But jurisdictions just make an exception for subrogation Single Wrongful Act – As defendant’s wrongful act was single, the cause of action must be single.

o Different injuries occasioned by it are items of damages proceeding from the same wrong NOTES

o If two people were injured in the same occurrence, each claim is personal to each person harmed

o Not all jurisdictions have one rule for all kinds of caseso In Contracts cases, claim involves all amounts owed at the time of filing suit

See Carter v. Hinkle← Hypos

(1) You’re injured when slipping down bus’ stairs and then you get run overo Primary Rights – Two different partieso Single Wrongful Act – Still two different causes because the stair manufacturer is different than

the bus drivero Same Transaction/Occurrence – It’s one case because there’s so much overlap

(2) You get into a car accident and then the other driver gets out of the car, punches you, and proceeds to defame you

o Primary Rights – three claims – car accident (negligence), battery, and slandero Single Wrongful Act – also three claimso Same Transaction/Occurrence – One case, legal theory doesn’t matter

(3) Same as (2), but the defamation happens a month latero Same Transaction/Occurrence – the further away you get form the car accident, the more likely

it’s a different transaction But just in case, you put ALL claims in the suit so you don’t run the risk of losing out on

a claim←← Carter v. Hinkle (Va. 1949)

Hinkle got hit by Carter and sued for damage of the car and won. Then he sued for personal injuries Trial court overruled Carter’s allegation of claim preclusion and let it go to the jury, Hinkle won again

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Issue – Whether a claim for personal injury arising from the same accident is the same claim as one for property damage?

Court looks to both the single wrongful act test (majority rule) and the primary rights test (minority) and adopt the minority, primary rights test – Hinkle can state the two claims separately

←← (3) Quality of Judgment ← (a) Finality

Final judgment by the trial courto Individual (non-final) ruling during the litigation don’t get preclusive effect because they may be

revisited by the judge before the decision on the caseo If a final judgment is appealed, federal courts hold that the trial court’s judgment in the interim

(before the appeal is decided) is entitled to claim preclusion. State courts differ If two cases go to trial at the same time, one that enters judgment first is given full faith and credit

←← (b) Valid

Court must have had SMJ and PJ. A judgment by a court having both forms of jurisdiction is valid, even if the court was wrong on the merits

o Default Example - In order to challenge PJ, D can default and wait for P to sue somewhere else. If D wins PJ issue, he wins. If D loses, cannot litigate on the merits (due to claim preclusion)

← (c) On the Merits A trial is NOT required, Summary Judgment and JMOL constitute a decision on the merits Any judgment in favor of the claimant is on the merits because it establishes the validity of the claim

(merger) The more difficult situation is where claimant loses (12(b)(6), discover sanction, etc.)

o Any judgment against claimant, except one for lack of jurisdiction, improper venue, or for non-joinder/misjoinder is accorded preclusive effect

o 12(b)(6) dismissal is on the merits, unless it’s entered without prejudice Dismissal with prejudice is on the merits

o SJ motions are usually with prejudice and therefore on the merits o If a party files suit but doesn’t pursue the case, dismissal is on the merits because plaintiff had

a full opportunity to litigate the merits Same is true for a defendant who defaults

← Exception to res judicata – Moser

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A sues B in state court under a state unfair competition statute. A might also recover against B for patent infringement, a federal claim where federal courts have exclusive jurisdiction

o A could not have included his federal theory in the first state court action because the federal courts have exclusive jurisdiction over the claim.

o Thus, he will usually NOT be barred from asserting the patent claim in a later suit← Contract Cases:

You contract with a supplier who delivers shipments 1 and 2, but not three. You sue on 3 and win, then they deliver shipments 4, 5, 6, but NOT 7

o No claim preclusion on 7 because the claim for it didn’t exist at the time of the first suit You sue for third shipment AFTER supplier fails to deliver shipment 7

o More likely the same claimo Rule of Accumulated Breaches - In an installment contract, each breach is its own separate

claim. But if by the time you sue, there is more than one breach, then you have to sue on all of them that have occurred up to that point

You have an installment contract for a car. If you miss payments, the balance becomes due and payable. If car dealer only sues for missed payments instead of the whole purchase price and wins, then you don’t have to make any future payments because he can’t sue you on it

o He split his claim if the balance becomes due and payable o Every installment contract likely has an acceleration clause at the option of the seller

Of course, even if dealer’s claim precluded, there’s still a moral/ethical obligation to continue making payments

←

← Issue Preclusion (Collateral Estoppel) Different claim, but arguably has an issue that was adjudicated between the same parties in a prior

claim, or at least against the party against whom the preclusion is assertedo If A, B, C has been established in first case and in the second you need A, X, Y – A has already

been established . You can preclude the re-litigation of that issue Narrower than res judicata in that it does not preclude all possible issues that might have been raised in

a prior action, but only those actually decided in that action But broader in that it can foreclose litigation of a particular issue in an entirely new context

← Rule for Issue Preclusion

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(1) Same Issueo Same Factso Same Law

(2) Actually Litigated (3) Necessary to the Result (4) Targets of Preclusion - Party against whom it is asserted was present in case 1 with a full & fair

opportunity to litigate (5) Quality of Judgment For offensive non-mutual issue preclusion (different plaintiffs, same defendant) - Parklane factors:

o Did P avoid case 1 for tactical reasons? – If no, issue preclusion probableo Did D have an incentive to litigate case 1? If yes, issue preclusion probableo Does case 2 give D procedural opportunities unavailable in case 1? If no, issue preclusion

probableo Are there prior inconsistent judgments? If no, issue preclusion probable

←← (1) Same Issue

Same Law and Same Factso Same substantive lawo Same standard of proofo Law interpreted the same way

Look to differences in law (federal vs. state), as well as how the standard is interpreted in the different jurisdictions

o If body of law being used is different, must ask whether the standard is different. On exam, recognize that there may be a difference and say that research must be done to determine if different systems/contexts use the word the same way.

Case 1 – State bar against lawyer for malpractice; Case 2- Client against lawyer for malpracticeo “Negligence” can mean tow different thigs in these contexts – if different law applies it’s NOT

the same issue Case 1 – State Government v. Acme on whether Acme committed fraud (preponderance of evidence

standard); Case 2 – Person vs. Acme in Federal Court (clear and convincing standard)o Same facts, but different evidence standard – clear/convincing is more stringent than

preponderance.

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A jury in case 2 may not find liability even though jury in case 1 might – NOT same issue

o If case 1 was clear/convincing and case 2 was preponderance of evidence If they met the higher standard in case 1, we assume they would have met the lower

standard in case 2 Case 1 – Worker with asbestos exposure from 1970-75 vs. corporation (duty to warn issue); Case 2 –

Worker 1965-70 vs. Corpo Different workero Even though it’s the same issue on the surface, it can be different depending on the substance

of the law Negligence is one issue, regardless of the theory Contract invalidity can be a number of different issues Research the substantive law to see how finely sliced the issue is

←←←←←←← (2) Issue Actually Litigated

Requirement is not satisfied when a party failed to raise an issue in a previous action, but an issue might not have been actually litigated even if it was raised in prior action

Reasons why a party may choose not to raise an issue:o Action may involve so small an amount that the litigation of the issue could cost more than the

judgmento Forum may be inconvenient

For claim preclusion, it doesn’t matter if it was actually litigated, as long as you had the chance to litigate it. For Issue preclusion, it DOES matter if it was litigated

If preclusive effect were given to issues not litigated, the result might serve to discourage compromise, decrease likelihood that issues in an action would be narrowed by stipulation, and thus intensify litigation

o Don’t force someone to think about issues in all cases down the line – only about the one case pending

When discussing same issue, don’t confuse it with “actually litigated”

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o If case 1 is a default case, the issue may be available in case 1 but it might not be actually litigated (see 2b hypo, below)

In Baldwin, D directly attacks PJ which court rejects. When P seeks to enforce the judgment in another court, D attacks PJ collaterally – this was issue precluded

← Cromwell v. County of Sac (1877) Case 1 – 4 Coupons on municipal bond. The county wouldn’t pay on the coupons and Cromwell sues.

County thinks the bonds are fraudulent and invalid. Court said bonds are invalid because of fraud Case 2 – Cromwell v. County on 4 different coupons. County said bonds are invalid! Cromwell said he’s

a holder in due course (received bonds for value without notice of its fraudulent issue). County said he could have raised this in Case 1 so he’s issue precluded

NOT a case of claim preclusion because it’s a different claim on 4 different couponso The coupons in case 2 were due and payable after the first suit – they’re separate contracts not

claim precluded o If they had been the same bonds, then it would have been claim precluded because the holder

in due course defense was available to him originally Holding - The rule makers decided that you shouldn’t have to litigate all issues in a claim that might

not be as relevant in this claim as it might be in a future claimo Thus, no issue preclusion and Cromwell can litigate the holder in due course doctrine

← Hypos: Case 1 – Dr. vs. Patient for breach of K for failure to pay for operation in CA – Patient defaults Case 2a – Dr. vs. Patient to enforce the judgment in NV

o Patient says it was medical malpracticeo D’s preclusion argument:

Claim Preclusion – Yes It’s same parties Same claim (from the same event – surgery) Quality of judgment – It was a default, that’s OK

Case 2b – Patient sues Dr. for malpractice in NVo Claim Preclusion – No

It’s same parties but NOT same claimanto Issue Preclusion – No

The issue was present in case 1 but it was not litigated because it was a default case

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o Rule 13(a) (Compulsory Counterclaim) – Court says yes, Peterson says no 13(a) says the pleader shall bring as a counterclaim, any claim at the time it files a

pleading, that arise out of same transaction/occurrence There’s no need for compulsory counterclaim because Rule 13(a) doesn’t come

into play since the defendant defaulted! He didn’t file a pleading! Yes, it’s coming from same transaction/occurrence

But, SCOTUS in Carteret v. Jackson said the default applies to whatever the party should have pleaded. Rule 13 is to prevent multiple cases

Peterson disagrees with this case – no compulsory counterclaim For purposes of this class, compulsory counterclaim rule does NOT

apply in a default case because you never filed a pleading

← (3) Issue Necessary to the Result Did the finding impact the judgment? Could the new plaintiffs had appealed the judgment? If a court finds for a litigant on two independent, sufficient grounds, the Restatement would deny issue

preclusion to either decision since it is impossible to tell which decision was necessary to the judgment o But some courts have given issue preclusion to both alternative determinations (See Hypo F)

← Rios v. Davis (Tex. Ct. Civ. App. 1963) Case 1 – Popular Dry Goods sued Davis to recover damages collision; Davis brings in Rios as a third

party defendant – ALL were contributorily negligent so Popular didn’t recover against Davis and Davis didn’t recover against Rios

Case 2 – Rios sued Davis. Davis answered saying Rios was guilty of contributory negligence and urged claim/issue preclusion

Same issue – Same facts, same law (negligence in TX) Actually Litigated – Davis said Rios was negligent. The jury rendered a verdict on whether Rios was

negligent Necessary to the Result – The sole basis for the first decision was the findings concerning the

negligence of Davis. The finding that Rios was negligent was NOT essential/material to the judgmento The finding of Rios’ liability has NO impact on the judgment in Case 1o If Rios wanted his negligence reversed for insurance reasons after the first case, he wouldn’t be

allowed to appeal because the case’s judgment wasn’t about him. He doesn’t really want the judgment in case 1 changed because he won! He didn’t have to pay Davis!

NOTES: o Rios could use issue preclusion against Davis in this case because Davis’ negligence was

determined in case 1 It’s the same issue, actually litigated, necessary to the final judgment vis a vis Rios in

Case 1 (Davis lost case 1 against Rios because he was negligent) Davis could have appealed case 1, Rios could not have

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o Had this case been filed in FEDERAL court, Rios would have been barred under 13(a) because this case arises from same transaction/occurrence – compulsory counterclaim

o What if case 1 was Popular vs. Rios and Davis? Normally, courts say that for co-defendants, you’re not bound by the result because the

two defendants didn’t litigate against each other ← Hypos (pp. 614-17) – Sally and Joe are in a cad accident. They both suffer personal injuries and property damage. The jurisdiction recognizes contributory negligence as a bar to recovery. No compulsory counterclaim rule

(A) 1 - Sally sues Joe for negligence, Joe says contributory negligence. Sally wins general verdict; 2 – Joe sues Sally. Can Sally assert issue preclusion against Joe as to his negligence or her freedom from negligence?

o Same Issue – Same accident + same jurisdiction (same law)o Actually Litigated – To determine if Sally won, they had to decide if Joe was negligento Issue necessary to judgment – Yes

If Sally couldn’t prove that she was not negligent and Joe was negligent, then she wouldn’t have won in the first case

(B) 1 – Sally sues Joe. Joe wins general verdict; 2 – Joe sues Sally. Can Joe assert issue preclusion against Sally as to his own freedom from negligence or Sally’s negligence?

o Although either Sally or Joe’s negligence was necessary to Joe’s judgment, we don’t know which was the necessary one so we can’t preclude either

Seems anomalous from A but in A, Sally needed to prove both to win; Here, Joe can win on either

(C) 1 – Sally sues Joe. Jury returns special verdict finding Sally was negligent and Joe wins. 2 - Joe sues Sally

o For Joe to win in case 2, he needs to prove he was not negligent. Whether or not it was actually litigated, it was NOT necessary to result in case 1

o Regarding Sally’s negligence - it is issue precluded because it was necessary and decided by Jury via the special verdict

(D) 1 – Sally sues Joe. Jury returns special verdict finding Sally was not negligent and Joe was. 2- Joe sues Sally

o Both person’s negligence was actually decided and necessary to the result because for Sally to win she needed to win on both, so both are issue precluded

o This is most like (A), the only difference is the from of the verdict (E) 1 – Sally sues Joe. Jury returns special verdict finding them both negligent so Joe wins. 2 – Joe sues

Sallyo Regarding Joe’s negligence – Joe won in case 1 so he could not have appealed the finding of his

own negligence. This is Rios v. Davis. Since Joe couldn’t appeal, this finding wasn’t necessary to the result and can’t be issue precluded

o Sally’s negligence CAN be issue precluded because her negligence was vital to the finding in case 1. Joe wouldn’t have won if she hadn’t been negligent

(F) 1 – Sally sues Joe. Jury returns special verdict finding Sally negligent and Joe not negligent. 2 – Joe sues Sally

o Joe only need to win on 1 issue to win case 1. His lack of negligence or Sally’s negligence both defeat Sally’s claim

o This is like (B), only it’s a special vs. general verdict

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o First Restatement of Judgments says BOTH issues (Joe/Sally’s negligence) are precludedo Second Restatement says NEITHER are precluded, unless challenged on appeal

What if it turns out that on one of issues, there was really good ground for appeal but on second, Sally was never going to win. Thus, she has no incentive to appeal that first issue. Thus it’s unfair to bind her

If she appeals, they can be precluded. If not, there will be no preclusion

(4) Targets of Preclusion - Party against whom it is asserted was present in case 1 with a full & fair opportunity to litigate

Claim preclusion could only be asserted against parties to prior litigation or nonparties in privity with litigant

o Same requirement for issue preclusion This section deals with issues of privity

o It’s all about Due Process - has the party whom issue preclusion is being asserted against had his or her day in court

Privity is appropriate for commercial and legal relationships (Hardy)o Courts struggle with extent to which virtual representation is proper

Taylor v. Blakey (D.C. Cir.) – Virtual representation requires: (1) Identity of interests; (2) adequacy of representation; (3) one other factor like (a) close relationship, (b) substantial participation in case 1, (c) tactical maneuvering by present party to avoid preclusion

← Hardy v. Johns-Mansville (5th Cir. 1982) Case 1 – Borel – Plaintiffs won a judgment against 6 asbestos manufacturers. Case 2 – Different plaintiffs sued the 6 defendants who lost in Borel and thirteen additional

manufacturers Issue – Whether issue preclusion can be used against those manufacturers NOT a party in Borel? District court said issue preclusion against all defendants because the defendants have an “identity of

interests” sufficient for preclusiono Same product, same interests, same business and therefore they were represented by

someone else on their behalf – big extension of privity!o Identity of interests alone is not sufficient for privity

Types of relationships that are in privity and justify preclusion:o (1) Based on commercial relationships – successor in interest in property or in a claim

Assigning right to sue based on someone else. If they’ve sued, person who acquired the claim is in privity

o (2) Legal relationships

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Trustees/executors/administrators Someone who had a right to control litigation (insurance policy with a right to defend)

Holding – In this case, the 13 other manufacturers didn’t even know the issue was being litigated in Borel. The hadn’t had their day in court and thus cannot be precluded

o Ruling also applies to defendants who were parties to Borel but settled before trial. But if they settled just to avoid issue preclusion, that might preclude re-litigation

← Hypo: Case 1 – Landlord v. Tenant – Eviction in expedited process Case 2 – Landlord v. Tenant – Back Rent (1) Is landlord claim precluded from bringing case 2?

o No because the statute here expressly allow for the split claims, even if it does arise from same transaction/occurrence. This is the Exception to claim preclusion

(2) Is the tenant precluded on the question of liability for back rent?o Same issue, actually litigated, essential to the judgmento But Tenant NOT given full/fair opportunity to litigate because the expedited process doesn’t

allow for full discovery Don’t bind party when there’s no adequate pretrial procedures

←← (5) Quality of Judgment

Same as Claim Preclusion, but applied in a different way (a) Validity – Notice, PJ, SMJ (same as Claim Preclusion) (b) Final Judgment – Doesn’t have to be a final judgment of the whole case, just on that issue (c) On the Merits – If issue has been finally adjudicated, adequate basis for on the merits

o As opposed to Claim Preclusion, where claim can be dismissed for issues not regarding the merits

←

← Beneficiaries of Preclusion ← Who can assert issue preclusion?

Due process requires that issue preclusion be asserted only against one who was a party to the first case

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o This is about by whom can issue preclusion be asserted Traditional Rule – Mutuality – Preclusion can be used only by someone who was a party to the first case

o Fairness rationale – someone who cannot be hurt by a prior judgment shouldn’t be entitled to take advantage of it

But the rule eroded because of two exceptions in vicarious liability cases:o Patron sues Employee, Employee wins. Now Patron sues employer because of vicarious liability

Because first case said Employee hadn’t committed a tort, employer wants to use issue preclusion but can’t because they weren’t a party to the first case

If the patron wins vs. employer, the employer would then sue the employee for indemnification. If employer wins that, what good was employee’s victory in case 1?

Court recognizes this – narrow exception to mutualityo Patron v. Employer, Employer won. Then Patron sues Employee. Employee can’t use issue

preclusion because of mutuality doctrine. The narrow exception doesn’t apply because if employee loses the case, he has no right to indemnification from the employer

Some courts still permit employee to assert nonmutual issue preclusion – broad exception

These exceptions paved the way towards most courts abandoning mutuality towards non-mutual issue preclusion

←← DEFENSIVE Non-Mutual Issue Preclusion

Used by defendant in case 2 in a claim to stop plaintiff from relitigating an issue that the plaintiff already litigated in another case an lost

o Non-mutual because the non-present D in case 2 would NOT have been bound had P won in case 1

← Blonder-Tongue Labs (1971) (1) Patent Holder v. Infringer #1 – Infringer wins (patent invalid) (2) Patent Holder v. Infringer #2

o Infringer #2 can raise defensive non-mutual issue preclusion Policy reasons – This limits the relitigating of issues without compromising fairness. It gives P an

incentive to join both Ds in one case o Efficient to allow defensive non-mutual issue preclusion because it encourages goal of

preclusion doctrine by forcing P to join as many Ds as possible in one case o Fair to the person precluded because person precluded has control over venue and is likely to

know how many Ds are out there and what’s at stake in the case The requirement is whether the party against whom preclusion is being asserted had a full/fair chance

to litigate the issue. Here they do because it’s brought against plaintiff who had the chance in case 1←

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← OFFENSIVE Non-Mutual Issue Preclusion Used by a plaintiff in case 2 who was not present in case 1 to prevent a defendant who was present in

case 1 from litigating an issue that the defendant already lost in case 1← (1) Victim 1 v. Acme – Victim 1 wins← (2) Victim 2 v. Acme

Issue – Can Victim 2 take advantage of victim 1’s judgment by precluding Acme in case 2?o Same issue, actually litigated, necessary to result, party whom it’s used against had full/fair

opportunity – by the rules, it’s OKo But this is inefficient! It encourages MORE litigation, not less (as with defensive non-mutual)

Encourages victim 2 to stay out of case 1 The rule is against non-mutual offensive issue preclusion, but there are some exceptions – Parklane

factors:o Did P avoid case 1 for tactical reasons? – If no, issue preclusion probableo Did D have an incentive to litigate case 1? If yes, issue preclusion probableo Does case 2 give D procedural opportunities unavailable in case 1? If no, issue preclusion

probableo Are there prior inconsistent judgments? If no, issue preclusion probable

Non-mutual Offensive Issue Preclusion has given rise to plaintiff shopping. Lawyers of many Ps will find the P with the strongest case and let them go forward, then the rest of the Ps will follow suit

o This is what happened in the Hardy caseo But defendants may engage in their own plaintiff shopping – settle claims with the Ps with good

cases and then try the case against the crappy plaintiffs But many plaintiffs don’t try to take advantage of offensive non-mutual issue preclusion because they’ll

want the jury to hear their own parade of horribles (if they have one)

← Parklane v. Shore (1979) (1) SEC v. Parklane – Parklane’s stock statements were false/misleading, SEC wins (2) Shore v. Parklane – Shore wants to issue preclude Parklane that proxy statements were fraudulent

o Same issue, actually litigated, necessary to result, against party who had full/fair opportunity

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Issue – Whether a litigant who was NOT a party to a prior judgment may nevertheless use that judgment “offensively” to prevent a defendant from relitigating issues resolved in an earlier case

Court said offensive non-mutual issue preclusion is OK, but it’s up to the district court’s discretion based on:

o (1) Did P avoid case 1 for tactical reasons (trying to get the benefit of P’s victory without the risk of loss)?

If case 1 was filed in CA and P2 wants to file in NJ, that might not be tactical avoidance Shore couldn’t have joined here because the SEC brought the case as an enforcement

actiono (2) Unfairness – D must have an incentive to litigate case 1 (stricter standard than issue

preclusion) If case 1 is for small damages, D may have little incentive to litigate, especially if future

suits are not foreseeable Here, the future suit was absolutely foreseeable, and there’s a strong incentive to

litigate in case 1 anywayo (3) Insufficient procedural opportunities I case 1

Where the second case gives D procedural opportunities unavailable in the first action that could cause a different result here, it may be unfair to bind him

If case 1 is in an inconvenient forum and D couldn’t engage in full-scale discovery

Courts are unclear on how important a jury trial in case 2, unavailable in case 1 iso (4) Prior Inconsistent Judgments

If D wins first 10 cases then loses the 11th, 11 seems like an anomaly and it may be unfair to bind D to that anomalous judgment

Where there are multiple potential plaintiffs (i.e., airline crash where 300 people die), most commentators say let 5-10 cases go through before precluding the D

Holding – Shore couldn’t have joined case 1, D had incentive to litigate case 1, procedural opportunities are the same, and there are no prior inconsistent judgments. Offensive non-mutual issue preclusion is OK, Parklane can’t litigate the issue of their fraudulent statements

←

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← V: Appeals Mechanisms by which judgments are examined There’s no federal constitutional right to an appeal, but federal and state courts have mechanisms for it Justifications:

o Appellate courts provide a means of insuring the law is interpreted correctly/uniformlyo Provide means for ongoing development and evolution of law in common law traditiono Heighten legitimacy and acceptability of judicial decisionso Provide means for the institutional sharing of judicial responsibilities for decisionso Fundamental element of procedural fairness

Three Topics in Appealso Timing

At what point can you appealo Scope of the Appeal

What gets reviewed?o Standard of Review on Appeal

How much deference is given to trial court

← Appellate Jurisdiction of Federal Courts Standard rule – No appeal until a final judgment

o 28 USC §1291 – Appeals court has jurisdiction from all FINAL decisions of district courtso But many decisions made in course of litigation are “interlocutory” - before the end of caseo A motion to dismiss or for Summary Judgment (if granted) is FINAL it’s appealable

Different states have different ruleso Some follow the federal model; others allow for a lot of interlocutory appeals

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May speed things up in a caseo Some allow very easy interlocutory appeal, but if you don’t appeal on interlocutory basis, you

waive your right to appeal Burnham, Asahi were interlocutory appeals via writ of mandamus If SJ motion is denied, you MUST appeal it immediately or it’s considered waived

← Exceptions to the Final Judgment Rule (1) Rule 54(b) – Allows district court judge to certify that a decision on a separate claim/party can be

certified for appeal o Court can enter final judgment as to some claims, hereby making that judgment appealable

even though other parts of the case remain unresolved o (a) Must be a separate claim or involve separate parties, ANDo (b) Must certify that there is no just reason to delay appeal dismissal of the separate

claim/party Separate claim is interpreted more liberally here than in res judicata – different injuries

may be different claims (2) Collateral Order Rule (Court-made Doctrine)– Three prong test from Cunningham:

o (1) Important Issueo (2) Separate from the merits of the caseo (3) Effective unreviewable on appealo Cohen v Beneficial Loan – Did the NJ requirement in shareholder derivative suit apply in Federal

Court?o Trial court said no

Important issue Whether NJ or Federal rule applies is a big issue that has an impact on other

shareholder derivative suits Separate from the merits

Issue of whether you had to file a bond was unrelated to merits of whether there was a cause of action for the shareholders

Decision unreviewable on appeal If this matter can only be appealed after final judgment, the case has been

heard without the posting of a bond (this would defeat the purpose of the bond requirement, which is to show that party bringing suit is willing to put bond up front). Therefore, making the argument on appeal is not good enough.

o Orders granting/denying motions to disqualify counsel are NOT immediately appealableo Denial of a government immunity suit under 11th Amendment IS immediately appealable

because the whole purpose of the amendment is to protect state from cost/burden of trial

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o Motion to vacate settlement is NOT immediately appealable because it’s reviewableo Decision to decertify a class action is NOT immediately appealable even if it may be a “death

knell” to plaintiffs because then it would turn on a case-by-case inquiry and court doesn’t like that

o Order staying a federal court action pending resolution of a parallel state case IS immediately appealable because the state judgment would be binding on the federal court

o Denial of dismissal for lack of PJ is NOT immediately appealable because it’s a right to not have judgment entered against you in the wrong forum, not the right to defend the case

But isn’t the whole purpose to prevent a defendant from having to litigate in a distant forum?

(3) §1292(a) – Injunctionso Decisions granting, modifying, or denying injunctions are exception to final judgment rule

because it’s extraordinary equitable relief. A party will be irreparably harmed without equitable relief

(4) §1292(b) – Discretionary Appealso If a judge entered an order, otherwise unappealable (i.e., denial of a motion to dismiss) and

there’s certification by trial judge that the issue is a controlling question of law with a substantial ground for difference of opinion, and will encourage rapid disposition of the case, then the Court of Appeals has discretion to take the case

Safety valve to quickly resolve recent issues, but requires discretion of trial judge and appellate court

Example – Title 7 of Civil Rights Act of 1964 – Controlling Question of Law

Did it apply to disparate payment of jobs? Substantial ground for difference of opinion

Something debated in courts Materially advance the ultimate termination of litigation

Argument is that this will resolve the case quicker – saves effort of conducting full trial, proving women nurses were highly trained, paid less, etc., only to find out that T7 doesn’t apply

Appellate court has discretion to accept or reject appeal (5) Mandamus

o Common law writ, been available for a while as an appellate mechanismo Remedy of last resort – VERY rare!o Unavailable on issues for which trial judge has discretion; only where trial judge has no

discretion (6) §1291(e) (§2072(c) of Rules Enabling Act)

o Allows SCOTUS to create exceptions to the final judgment rule

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Notes:o Discovery orders ordinarily are NOT final decisions for the purposes of §1291. Difficult to show

they’re interlocutory appeals under §1291(b)o The most effective way to appeal a discovery order is to defy it and be held in contempt, as in

Hickman v. Taylor, but this is obviously risky!← Timing

Notice of appeal must be filed with district court within 30 days after entry of judgment or order from which the appeal is taken. Limit is 60 days when the US is a party

o The district court determining and assessing costs does NOT extend the time It runs from the date judgment was entered

o Time requirement is jurisdictional and CANNOT be waivedo Filing an appeal does not suspend the effect of the judgment – sometimes you need to post a

bond guaranteeing that the judgment will be paid if you lose the appeal ←← Cunningham v. Hamilton County (1999)

Attorney violated discovery orders, got sanctions, and couldn’t work on the case anymore. He appeals the sanctions immediately, trying to use the collateral order rule

Issue – Whether an order imposing sanctions on an attorney is a final decision §1291 says appeals only of final judgments. It will permit jurisdiction over appeals from a small

category of orders that do not terminate litigation. Decisions that are:o (1) Conclusive

Sanctions order was conclusive, OKo (2) Resolve important questions separate form the merits

Sanctions order is NOT separate from the merits, it’s “inextricably intertwined” with the merits because evaluation of the appropriateness of sanctions requires appellate court to inquire into importance of information sought and honesty of response

To appeal you’ve have to look to the merits of the caseo (3) Effectively unreviewable on appeal from the final judgment in the underlying action

It is reviewable on appeal from final judgment because unlike witnesses, there’s an “identity of interest” between lawyer and client;

It’s not a contempt order, which is automatically appealable because the non-party (lawyer’s) injury may be impossible to repair otherwise

Policy reasons - this can prolong litigationo Also, to permit an immediate appeal from a sanctions order would undermine the purpose of

the sanctions rule (37(a)) which was designed to protect courts and opposing parties from delaying/harassing tactics during the discovery process

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Holding – Sanctions order is NOT a final decision under §1291 and is NOT immediately appealable ←

← Scope and Standard of Review on Appeal (1) What kinds of issues can you bring to a court on appeal? (2) What is the standard of review on appeal (how much deference to trial court)?

←← Scope

The Appellate process isn’t designed to remedy all mistakes at trial court level. Purpose is to ensure the results below (judgment entered) is correct

4 General Rules o (1) Error must be on the record in order to appeal (because that’s what appellate court

evaluates)o (2) You must object to an error on the record in order to preserve the appeal

Give trial judge/parties time to correct their alleged mistake o (3) May not raise issues for the first time on appeal – if it’s not raised it’s waivedo (4) You may NOT appeal harmless error

Even where there is error, appellate court won’t reverse unless error materially affected the outcome

The winning party may not appeal Hypo: Patent suit. Court finds that patent is valid but not infringed. D wins but court enters a

judgment that said the patent was found valid. o Can D appeal, even though he won the case?

Yes- D has a problem with the fact that the trial court put the patent validity in the judgment. Supreme Court says that Appellate Court can review whether the trial court properly put this in the judgment, when this was not asked for. Appellate Court can remand to District Court and order that it be removed from judgment

o Note: Defendant should have filed an original counter-claim seeking a declaratory judgment that the patent was invalid. That way, if it was found valid, D could still appeal.

← Cross Appeals General Rule – If a losing party appeals, the winning party may respond by raising an issue that would

sustain the judgment, even if it was not an issue that was clearly decided belowo The winning party can raise any appeal that would sustain the issue below, even if it wasn’t a

basis for the judgment But no new evidence concerning facts; may only address new legal theories based on

the facts presented at trial

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Corollary – Winning party is limited to the issues that support the judgment, unless they enter a cross appeal

o If you want something different from what the court gave you (in terms of bottom line, not in terms of rationale), then you must file cross-appeal

Hypo: Insurance company is sued. Trial Court: (1) No coverage under policy language; (2) No reformation; BUT (3) Insurer is estopped from denying coverage (insured is covered despite the finding in (1)). Insurer appeals. Insured responds: Wants to say (1) Policy did cover her; (2) Policy should have been reformed; (3) Court should have awarded attorney’s fees. Does she have to cross-appeal?

o (1) No. Supports the judgment that the claim is covered. Since insured won’t get anything different, no need for cross appeal. It’s just an alternative ground for winning a final judgment

o (2) In asking for reformation, they’re asking for something other than what they got in the judgment (which was only the coverage for the claim). Reformation would get them a re-written contract

Therefore, since this is something new, must cross appealo (3) Assuming that insured did not get attorney’s fee, need to cross appeal. Judgment below

merely means that the insured was covered. He wants judgment changed to give them attorney’s fees

← Standard of Review Issues of Law

o De Novo – No deference to trial courto Example – JMOL

Procedural Issueso Abuse of Discretion – most deferential standard

Appellate court could completely disagree with the trial court, but will not reverse as long as trial would was within a reasonable range

Example - New Trial, motions to transfer, discovery rulings, scheduling Factual Issues decided by the judge

o Clearly Erroneous (Rule 52) Appellate Court, after reviewing evidence, is left with a definite and firm conviction that

a mistake has been committed More deferential than most rulings, but less deferential than abuse of discretion

Factual Issues decided by a juryo These are NOT directly appealable, but instead are appealed through judge’s denial of either

JMOL or New Trial motions. Not appealing verdict per se, just judge’s denial of motions JMOL – De Novo (is evidence legally sufficient?) New Trial – Abuse of Discretion

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