Civ Pro Flashcards
1
Q
Civ Pro - big topics
A
- Right court
- Learning about the case
- Multiparty cases
- Adjudication
- Appellate review
- Preclusion
2
Q
Civ Pro - subtopics - right court
A
PJ, SMJ, Venue
3
Q
Civ Pro - subtopics - learning about the case
A
service of process, pleadings, discovery
4
Q
Civ Pro - subtopics - multiparty cases
A
party joinder, class action
5
Q
Civ Pro - subtopics - adjudication
A
injunctions, pretrial, trial
6
Q
Civ Pro - subtopics - appellate review
A
final judgment, interlocutory, standard of review
7
Q
Civ Pro - subtopics - preclusion
A
claim preclusion, issue preclusion
8
Q
personal jurisdiction
A
PJ is about the court’s power over the parties
“Can P sue D IN THIS STATE?”
9
Q
PJ - 2 step analysis
A
- Satisfy a state statute AND
- Satisfy the Constitution (Due Process)
Same analysis for state and federal court.
10
Q
3 types of jurisdiction for PJ
A
- in personam
- in rem
- quasi in rem
11
Q
PJ - in personam jurisdiction
A
P sues to impose a personal obligation on D
12
Q
PJ - in personam jurisdiction
statutory analysis
A
On an essay, state that you need a state statute.
13
Q
PJ - in personam jurisdiction
constitutional analysis
A
Does D have “such minimum contacts with the forum so that jdx does not offend traditional notions of fair play and substantial justice?”
14
Q
PJ - in personam jurisdiction
constitutional analysis
What makes PJ clearly constitutional?
A
PJ is clearly constitutional if D is:
- domiciled in the forum OR
- consents OR
- is voluntarily present in the forum when served with process
15
Q
PJ - in personam jurisdiction
constitutional analysis
What if PJ is not clearly constitutional based on domicile, consent, or voluntary presence?
A
IF PJ is not clearly constitutional based on domicile, consent, or voluntary presence, then assess 1) contact, 2) relatedness, and 3) fairness
16
Q
PJ - in personam jurisdiction
constitutional analysis
contact
A
There must be a relevant contact between D and the forum state.
- Contact must result from PURPOSEFUL AVAILMENT, which is D’s voluntary act.
a. D must target or reach out to the forum.
b. D can purposefully avail without setting foot in the forum. - It must be FORESEEABLE that D could get sued in the forum.
17
Q
PJ - in personam jurisdiction
constitutional analysis
relatedness
A
- Does P’s claim arise from D’s contact with the forum?
If so, the court has specific PJ.
If not, then jdx is only ok if the court has general PJ so that D can be sued there for a claim that arose anywhere in the world.
To have general PJ, D must be at home in the forum.
A human is always at home in the forum where he is domiciled.
A corporation is always at home 1) where incorporated and 2) where it has its PPB.
18
Q
PJ - in personam jurisdiction
constitutional analysis
relatedness - specific PJ v general PJ
A
General PJ - where D as at home in the forum and can be sued there for a claim that arose anywhere in the world.
Specific PJ - where D is not at home in the forum and can only be sued there for a claim arising from those activities.
19
Q
PJ - in personam jurisdiction
constitutional analysis
fairness
A
ONLY ASSESS WITH SPECIFIC PJ
How to determine whether jdx is fair
1. Burden on D and witnesses - Does due process guarantee that the suit will be in the most convenient forum for D?
THE RELATIVE WEALTH OF THE PARTIES IS NOT DETERMINATIVE.
2. State’s interest - The forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-staters.
ALWAYS A STATE’S INTEREST IF P IS A CITIZEN OF THE FORUM
3. P’s interest - P may be injured and wants to sue at home.
20
Q
PJ - in personam jurisdiction
constitutional summary
A
- Contact - purposeful availment & foreseeability
- Relatedness - general PJ v specific PJ
- Fairness (specific PJ only) - burden/convenience, state’s interest, P’s interest
21
Q
PJ - in rem and quasi in rem jdx
A
Power is not over D but D’s property.
Property must be attached by the court at the outset of the case.
To be constitutional, D’s contacts with the forum must meet the constitutional test.
22
Q
subject matter jurisdiction
A
SMJ is about the court’s power over the case.
“Does P sue D in state or federal court?”
23
Q
PJ v SMJ
A
PJ: PJ is about the court’s power over the parties
“Can P sue D IN THIS STATE?”
SMJ: SMJ is about the court’s power over the case.
“When P sues D in this state, is it in state or federal court?”
24
Q
SMJ - state v fed
A
State courts can hear any kinds of case - general SMJ.
Federal courts have limited SMJ - only diversity of citizenship (including alienage) or federal question.
25
SMJ - diversity of citizenship and alienage
Diversity of citizenship - the case is between citizens of different states.
Alienage - the case is between a citizen of a state and a citizen of a foreign country
26
SMJ - complete diversity rule
No diversity if any P is a citizen of the same state as any D.
27
SMJ - complete diversity rule for alienage
No diversity if P and D are both from foreign countries.
A green-card alien is considered an alien, except:
A special rule prohibits alienage if a green card alien is domiciled in the same U.S. state as a litigant on the other side of the case.
A U.S. citizen domiciled outside of the U.S. is not a citizen of any U.S. state and is not an alien.
28
SMJ - citizenship of a natural person
The citizenship of a natural person who is a U.S. citizen has the citizenship of the U.S. state of her domicile.
29
SMJ - citizenship of a natural person
| domicile
Domicile is established with 1) physical presence AND 2) intent to make it your permanent home.
A human can be a citizen of only 1 state at a time.
30
SMJ - citizenship of a corporation
A corporation has the citizenship of 1) every state or country where incorporated AND 2) the ONE state or country of its PPB.
A corporation's PPB is where managers DIRECT, COORDINATE, AND CONTROL corporate activities. (The nerve center - usually headquarters)
A corporation CAN be a citizen of more than 1 state at a time.
31
SMJ - citizenship of an unincorporated association (partnership, LLC)
The citizenship of an unincorporated association is the citizenship of ALL its members.
32
SMJ - citizenship of decedents, minor, or incompetents
The citizenship of decedents, minors or incompetents is NOT the citizenship of the representative but rather that of the decedent, minor or incompetent.
33
SMJ - amount in controversy
In addition to complete diversity or alienage, P's claim of amount in controversy (AiC) must be > $75K.
This does not include legal costs or interests on the claim, but it can include interest AS the claim.
Whatever P claims in good faith is ok UNLESS it is CLEAR TO A LEGAL CERTAINTY that P cannot recover more than $75K.
What P wins as a judgment is irrelevant to SMJ, even if it is less than $75K.
34
SMJ - aggregation
Adding 2 or more claims to meet the AiC requirement.
Factually unrelated claims can be aggregated.
There is no limit to the number of claims that can be aggregated.
With joint claims, use the total value of the claim. The # of parties is irrelevant.
35
SMJ - equitable relief
If either of the two tests for equitable relief are met, most courts will find equitable relief to be ok.
1. P's viewpoint - Is the loss in value to P > $75K?
2. D's viewpoint - Would it cost D > $75K to comply w/the injunction?
36
SMJ - exclusions
Even if the requirements for a diversity or alienage case are met, fed cts decline to hear some cases.
Divorce, alimony, child custody, and probate on an estate are excluded cases (even if diversity requirements are met).
37
federal question
The claim in P's complaint "arises under federal law."
| Neither citizenship nor AiC are relevant under FQ.
38
FQ - well-pleaded complaint rule
P's claim must arise under federal law.
It is not enough that some federal issue is raised by the complaint.
P must be enforcing a federal right.
39
FQ - Is P enforcing a federal right?
If so, case can go to fed ct under FQ jdx.
| If not, case cannot go to fed ct under FQ.
40
FQ - tort, K and property claims
Regular tort, K and property claims are usually state law claims, not federal law. If it is a federal claim, then the case would likely be a diversity case.
41
SMJ over additional claims (including supplemental jdx)
Once a case is in fed ct, additional claims might be asserted in that case.
Each of these additional claims must be tested for federal SMJ - either diversity or FQ.
If an additional claim satisfies diversity or FQ, it can be heard in the fed ct case.
42
SMJ over additional claims
| What happens if the additional claim does not satisfy diversity or FQ?
Fed ct can still hear the claim IF it invokes supplemental jdx.
43
supplemental jdx
Supplemental jdx gets claims into the case even though the claims do not meet diversity of citizenship and do not meet FQ.
44
supplemental jdx - 2 steps
Two steps for supplemental jdx:
1. The claim we want to get into fed ct MUST SHARE a "common nucleus of operative fact" with the claim that invoked federal SMJ that got the case into fed ct.
ALWAYS MET when claim arises under same transaction or occurrence.
2. BUT in a diversity case, claims by plaintiffs cannot invoke supplemental jdx.
3. The only exception to this limitation is when there are multiple Ps and one of them does not meet the AiC requirement.
45
supplemental jdx - summary
A non-federal, non-diversity claim can be heard in fed ct if it meets the shares a common nucleus of operative fact UNLESS
1. asserted by a P
2. in a diversity case (not FQ) AND
3. there are not multiple Ps and 1 of them doesn't meet AiC.
Even if we meet supplemental jdx, the court has discretion to decline jdx if
a. the state law claim is complex or
b. state law issues would predominate the case OR
c. the underlying claim is dismissed early in the case (MOST LIKELY)
46
removal
Removal transfers the case from state trial court to federal trial court.
D sued in state court may remove to fed ct.
If removal was improper, fed ct can remand the case back to state court.
47
removal
| When must D remove?
D must remove w/in 30 days of SERVICE (not filing) of the first paper that shows the case is removable. USUALLY that means w/in 30 days of service of process.
48
removal
| Who must join in the removal?
All D's who have been served w/process must join in the removal.
The 30-day time clock can be restarted with service on a new D.
49
removal
| Who can remove?
Only D can remove.
| P can never remove since P had the chance to initially file in fed ct.
50
removal
| What cases can be removed?
1. D can remove a case that meets the requirements for diversity of citizenship or FQ.
2. 2 big exceptions (apply ONLY if we are removing on the basis of diversity)
a. No removal if any D is a citizen of the forum (in-state D rule) AND
b. No removal more than a year after the case was filed in state court. (Exception: If the fed judge finds that P acted in bad faith by originally joining 2nd D to prevent removal.)
Note: A case might become removable IF the claim against the in-state D is dropped.
51
removal
| Which federal district court will the removed case to?
D removes to the federal district "embracing" the state court where the case was filed.
52
removal
| How to remove a case
1. D files "notice of removal" in federal court, stating grounds of removal which means federal SMJ (diversity or FQ).
1a. If state law claim AiC $75K.
2. In all cases, D attaches all documents that were served on her in state action. She serves a copy of the notice of removal on adverse parties. Then she files a copy of the "notice of removal" in state court.
53
removal
| remand
If P thinks the case should not have been removed, P moves to remand to state ct.
If other than lack of SMJ, P must move to remand no later than 30 days after notice of removal was filed in fed ct.
If lack of SMJ, P can move to remand anytime. (SMJ is never waived.)
If D removes a diversity case but there was an in-state D, P must move to remand w/in 30 days.
54
Erie doctrine
Diversity case in fed ct and federal judge does not know whether to apply state law or federal law.
55
Erie doctrine - step 1
1. Is there some federal law (federal constitution, federal laws, FRCP) on point that directly conflicts with state law?
If so, apply the federal law.
(Based on Supremacy Clause)
56
Erie doctrine - step 2
2. If there is no federal law on point, fed judge must apply state law IF the issue is determined to be substantive.
57
Erie doctrine
| What 4 issues make an issue clearly substantive and require applying state law?
1. elements of a claim or defense
2. statute of limitations
3. rules for tolling statutes of limitations
4. conflict (or choice) of law rules
58
Erie doctrine - step 3
If there is no federal law on point and the issue is not one of the four, the fed judge must determine whether the issue is substantive. The law is VERY unclear.
59
Erie doctrine
| What 3 factors does the court apply to know if the issue is substantive?
1. Outcome determinative - would applying or ignoring the state rule affect the outcome of the case? If so, then substantive and apply state law.
2. Balance of interests - does either federal or state system have a strong interest in having its rule applied?
3. Avoid forum shopping - if fed ct ignores state law on this issue, will it cause parties to flock to fed ct? If so, then probably apply state law.
60
Erie doctrine
| general federal common law
Erie means there is no GENERAL federal common law.
General common law of Ks, torts and property is state law, and fed cts must apply that state substantive law in a diversity case.
BUT fed cts can make up common law on their own.
61
Venue v PJ v SMJ
PJ: PJ is about the court's power over the parties
"Can P sue D IN THIS STATE?"
SMJ: SMJ is about the court's power over the case.
"When P sues D in this state, is it in state or federal court?"
Venue: Venue is exactly which federal court the case will be heard in.
62
Venue - basic choices
P may lay venue in ANY DISTRICT WHERE:
1. ALL Ds reside
1a. If all Ds reside in different districts of the same forum state, P can lay venue in the district where any D resides.
OR
2. A substantial part of the claim arose
63
Venue
| Where do Ds reside for venue purposes?
1. A human resides in the district where domiciled (one).
| 2. A business resides in ALL districts where subject to PJ.
64
Venue
| transfer
A federal district court may transfer the case to another federal district court.
Transferor - the original district court
Transferee - the district court to which the case is sent
Transferee must be a proper venue AND have PJ over D
65
Venue
| transfer rules
1. Ct can xfer to any district (even an improper venue) if:
a. ALL parties consent (but unlikely that P will do so) AND
b. The court finds cause for the xfer.
2. If the original district is a proper venue, that court can order xfer based on convenience of parties AND on interest of justice.
66
Venue
| Is there a right to xfer?
No, xfer is discretionary.
| If we xfer in a diversity case, t'ee applies law that t'or would apply.
67
Venue
| What factors does ct look to in deciding whether to xfer the case?
Xfer overrides P's choice of forum (b/c P chose a proper venue).
Burden is on the person seeking xfer.
Public and private factors showing that t'ee is the center of gravity are factors the court looks to.
Public factors - what law applies, what community should be burdened with jury service, desire to keep a local controversy in the local court
Private factors - convenience, where evidence and witnesses are.
68
Venue
| If original district is an improper venue, what may that court do?
1. Dismiss
2. Xfer in the interest of justice
2a. If we xfer, t'ee does not apply law t'or.
69
Forum non conveniens (FNC)
Like xfer, another court is the center of gravity that makes more sense than the present court.
However, with FNC, the court does not xfer to a more convenient court but either dismisses or stays the case.
70
FNC - stay
Hold in abeyance (nothing happens in the case)
P will probably sue in another court because the more convenient court is in a different judicial system so xfer is impossible.
71
FNC - decision
Decision for FNC is based on the same public and private factors as transfer.
This requires a STRONG showing since this results in dismissal or stay.
Hardly ever granted if P is resident of present forum.
Other court must be available and adequate. P must get day in court.
72
service of process
D is entitled to notice that D has been sued.
| Usually this consists of 1) a summons and 2) a copy of the complaint.
73
service of process - summons
Summons - formal court notice of suit AND time for response
74
service of process
| Who can serve process?
Any nonparty who is at least 18yo.
75
service of process
| How is process usually served?
1. Personal service - papers are given to D personally ANYWHERE.
2. Substituted service - process is left a) at D's usual abode and 2) served to someone of suitable age and discretion who resides there.
Usual abode is determined by common sense.
3. Service on D's agent - receiving service must be in scope of agency (registered agent, managing agent, officer)
76
service of process
| How else can process be served?
1. Others - We can use methods for serving process that are permitted by state law where the fed ct sits OR where service is made.
For example, service by mail if allowed by state statute.
2. Waiver by mail
a. Mail D a copy of complain and 2 copies of waiver with a SASE
b. If D executes and mails the waiver back to P w/in 30 days, then D waives formal service of process (not a waiver of any defenses).
c. P then files the waiver in court. Waiver is effective when filed.
d. If D fails to return the waiver, P then has to serve personally or by substituted service. If D did not have good cause, then D must pay for the cost of service.
77
service of process
| Return of service
The person who serves process files a report with the court detailing how service was made.
If server was a civilian, report is by affidavit.
Failure to file the report does not affect validity of service.
78
service of process
| other docs
Other documents get served but do not need a summons or formal service.
Can be delivered or mailed or emailed (by AGR).
The other party gets 3 extra days if docs are mailed.
79
pleadings
1. Complaint
2. Response - motion or answer
3. Counterclaim (compulsory or permissive) - check for SMJ
4. Crossclaim
5. Additional claims
6. Amended pleadings
7. Supplemental pleadings
8. Rule 11 sanctions
80
pleadings
| complaint requirements
1. Statement of grounds of SMJ
2. Short and plain statement of the claim, showing entitled to relief
3. Demand for relief sought (damages, injunction, declaratory judgment)
Must plead facts supporting a plausible claim. (Judge uses experience and common sense for plausibility.)
D can challenge the complaint with 12(b)(6) motion.
81
pleadings
complaint requirements
What 3 matters must be pleaded with even more detail?
Fraud, mistake and special damages must be peladed with particularity and specificity.
82
pleadings
| D's response
Either a) motion or b) answer w/in 21 days of service of process.
If you waived service, you get 60 days from when P mailed you the waiver form.
83
pleadings
| D's response - motions
Motions - requests for a court order
84
pleadings
D's response - motions
Issues of form
1. Motion for more definite statement (statement so vague that D cannot respond - rare)
2. Motion to strike (removes immaterial or scandalous things)
85
pleadings
D's response - motions
12(b) defenses
Can be put either in a motion to dismiss or in the answer
1 - lack of SMJ - NEVER WAIVED
2 - lack of PJ - waivable
3 - improper venue - waivable
4 - improper process (problem w/papers) - waivable
5 - improper svc of process - waivable
6 - failure to state a claim - can be raised at anytime through trial
7 - failure to join an indispensable party - can be raised at anytime through trial
86
pleadings
D's response - motions
waivable defenses
Waivable defenses must be put in the 1st rule 12 response or else they are waived.
87
pleadings
D's response - motions
xfer of venue
If improper venue was waived, ct still has discretion to xfer.
88
pleadings
D's response - motions
lack of SMJ
If court finds lack of SMJ, court must dismiss.
89
pleadings
D's response - motions
lack of SMJ - removal
If case was removed to fed ct and then finds lack of SMJ, case gets remanded back to state ct.
90
pleadings
| D's response - answer
1. Respond to allegations of complaint
| 2. Raise affirmative defenses
91
pleadings
D's response - answer
respond to allegations of complaint
Either 1) admit, 2) deny, or 3) state that you lack sufficient information to admit or deny.
Failure to deny is an admission.
You have a duty to investigate things in your control, so don't say you lack information. (Can serve as an admission)
D is never deemed to admit damages.
92
pleadings
D's response - answer
raise affirmative defenses
Affirmative defenses inject a new legal fact into the case which will allow D to win.
Failure to plead an affirmative defense serves as waiver for the affirmative defense.
93
pleadings
| counterclaim
A claim against an opposing party
| 2 types - compulsory and permissive
94
pleadings
| compulsory counterclaim
Arises from the same ToO as P's claim.
Unless you have already filed the claim in another case, you must file this in the pending case OR the claim is waived.
If the case is dismissed, then the compulsory ctrclaim is not waived.
95
pleadings
| permissive counterclaim
Does not arise from the same ToO as P's claim.
| Not required to file and may sue as a separate case.
96
pleadings
| counterclaim - SMJ
Must always assess if additional claim invokes diversity or FQ. If so, then in fed ct. If not, then try supplemental jdx.
97
pleadings
| crossclaim
A claim against a co-party.
Must arise from the same ToO as underlying action.
NOT compulsory (may assert here or sue separately)
MUST MEET SMJ or try supp jdx
98
pleadings
| additional claims
Once you file a ctrclaim or a crossclaim (or any claim), you can join an additional claim.
1. Must invoke SMJ or try supp jdx
99
pleadings
| amended pleadings - 4 fact patterns
1. Right to amend
2. Seek leave of the court
3. Variance
4. Amendment after SoL has run
100
pleadings
amended pleadings - 4 fact patterns
right to amend
P has right to amend ONCE w/in 21 days after D serves 1st rule 12 response.
101
pleadings
amended pleadings - 4 fact patterns
seek leave of the court
If no right to amend, then seek leave of court.
Will be granted if justice so requires.
Courts look to delay, prejudice, futility of amendment
102
pleadings
amended pleadings - 4 fact patterns
variance
Evidence at trial does not match what was pleaded.
P can move to amend the complaint to conform to the evidence.
Ensures that the pleadings match what was actually tried.
103
pleadings
amended pleadings - 4 fact patterns
amendment after SoL has run (relation back)
You can amend to relate back to either
1. Join a new claim or
2. Change a Defendant
104
pleadings
amended pleadings - 4 fact pattern
relation back - join a new claim
To join a new claim: Amended pleadings relate back if they concern the same conduct, ToO as the original pleading.
Relation back means that you treat the amended pleading as though it was filed when the original was filed so you can avoid a SoL problem.
105
pleadings
amended pleadings - 4 fact pattern
relation back - change a D
To change a D after SoL has run, this will relate back IF
1. It concerns the same conduct, ToO as the original pleading
2. The new party knew of THIS case within 90 days of its filing, AND
3. The new party also knew that, but for a mistake, she would have been named originally.
106
pleadings
| supplemental pleadings
Supplemental pleadings set forth things that happened AFTER the pleading was filed.
(Amended pleadings are about things that happened BEFORE the pleading was filed but not asserted until later.)
Right to file a supplemental pleading is discretionary with the court.
107
pleadings
| rule 11 sanctions
Applies to ALL documents except discovery
When the lawyer signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
1. The paper is NOT for an improper PURPOSE, and
2. The legal contentions are warranted by LAW (or nonfrivolous argument for law change) and
3. The FACTUAL CONTENTIONS and denials of factual contentions have evidentiary support (or are likely after further investigation.
108
pleadings
rule 11 sanctions
When is the certification made?
The certification is made EVERY TIME lawyer presents a position to the court. (continuing certification)
109
pleadings
rule 11 sanctions
Against whom may a Rule 11 sanction be ordered if there is a violation?
A Rule 11 sanction may be ordered for violation against the party, the attorney, or the firm responsible.
Usually, the firm is jointly responsible with the attorney.
110
pleadings
rule 11 sanctions
purpose
The purpose of Rule 11 sanctions is to deter, not punish.
| Before imposing a sanction, court must give attorney a chance to be heard.
111
pleadings
rule 11 sanctions
When can a motion for a Rule 11 sanction be made?
If the other party violates Rule 11, you can serve the motion on the other parties but NOT file it.
Party in violation has a 21 day safe harbor to fix the problem and avoid sanctions.
If party does not do so, then the motion can be filed.
112
pleadings
rule 11 sanctions
Can the court raise Rule 11 sanctions?
The court can raise Rule 11 problems on its own (sua sponte).
Court usually issues an order to show cause why sanctions should not be imposed.
(Court must give a chance to be heard before imposing a sanction.)
113
discovery
required disclosures
discovery tools
scope of discovery
enforcement of discovery rules
114
discovery
| required disclosures
MUST be disclosed EVEN THOUGH no one asks for it
1. initial disclosures
2. expert witnesses
3. pretrial required disclosure
115
discovery
required disclosures
initial disclosures
Unless a court order or stipulation of parties says otherwise, w/in 14 days of the rule 26(f) conference, each party must disclose:
1. identity of person who have discoverable info that you may use to support your claims/defenses
a. Name, telephone #, subject on which they have info
b. Failure to identify a party means you cannot use the witness in the case (unless substantially justified or harmless)
2. documents and things you may use to support your claims/defenses
a. You can use copies or descriptions of the things
b. includes photos, recordings, ESI, plus tangible things like remnants of a blown out tire
c. Failure to disclose something means you cannot use the witness in the case (unless substantially justified or harmless) if they are in your control
3. Computation of monetary relief and docs/ESI supporting it
4. Insurance coverage
116
discovery
required disclosures
expert witness
EW is someone who, because of special skill or training, may give opinion testimony hired to render an opinion in this case.
117
discovery
required disclosures
expert witness req disclosure
Later in the case, parties must identify EWs who may be used at trial.
1. Identity and a written report prepared by EW
2. EWs report must include: opinions EW wil express, bases for the opinions, facts used to form the opinion, EW's qualifications, how much EW is getting paid
3. Failure to identify an EW and provide the required info means you cannot use EW in the case (unless substantially justified or harmless)
118
discovery
required disclosures
pretrial required disclosure
No later than 30 days before trial, must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and docs/ESI/things to be introduced at trial.
119
discovery
| discovery tools
1. depositions
2. interrogatories
3. requests to produce
4. medical exam (physical or mental)
5. request for admission
6. substantive answers under oath
7. duty to supplement
120
discovery
discovery tools
depositions
deposition - live testimony in response to questions by counsel or pro se parties.
Questions are usually oral but can be written
Deponent testifies under oath
recorded by audio or video or steno and a transcript can be made
non-party should be subpoenad to compel attendance
subpoena duces tecum requires the deponent to bring requested materials with her
unless nonparty agrees, farthest required to travel for depo = 100 miles from residence or employment
121
discovery
discovery tools
depositions - limits
Cannot take more than 10 depos OR depose the same person twice w/o court approval or stipulation.
Depo cannot exceed 1 day of 7 hrs unless court orders or parties stipulate
122
discovery
discovery tools
depositions - use at trial
depo use at trial
1. impeach the deponent
2. any purpose if deponent is adverse party
3. any purpose if deponent is unavailable for trial UNLESS that absence was procured by the party seeking to introduce the evidence
123
discovery
discovery tools
interrogatories
interrogatories - written questions to be answered in writing under oath
1. You can sen interrogatories to parties only
2. Party has 30 days from service to answer or object
3. You can say you don't know the answer, but you must answer from information reasonably available to you.
4. Max 25 interrogs you can sent to party, including subparts
5. Responding party can allow requesting party access to records in response
6. You cannot use your own answers to interrogs at trial. (Others are ok per rules of evidence)
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discovery
discovery tools
request to produce
request to produce - requests that someone make available for review and copying documents or things (including ESI) or to permit you to enter designated property to inspect, measure, etc.
Person must respond in writing w/in 30 days of service stating that the material will be produced or asserting objections
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discovery tools
request to produce issues
1. Can make RTP of parties only, but can get same info from non-party w/subpoena
2. ESI is to be produced in the form specified by the requesting party, but the responding party can object
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discovery tools
medical exam (physical or mental)
You MUST get a court order.
You must show 1) that person's health is in actual controversy and 2) good cause (otherwise it is harassment)
A party or someone in the party's custody or legal control can be ordered to undergo a medial exam.
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discovery tools
request for admission
request for admission - written request that someone admit things
Can be served on parties only
If responding party fails to deny specifically (or object) in writing w/in 30 days, responding party is deemed to admit
Responding party can says she does not know ONLY if she states that she made reasonable inquiry and cannot find enough to admit or deny.
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discovery
discovery tools
substantive answers under oath
Every discovery request and response is signed by counsel certifying 1) it is warranted, 2) it is not interposed for improper purpose, and 3) it is not unduly burdensome.
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discovery tools
duty to supplement
If real world circumstances change, you must supplement your response EVEN THOUGH no one asks you to.
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discovery
scope of discovery
standard
Standard of discovery - You can discover anything relevant to a claim or defense AND proportional to the needs of the case.
Relevant is broader than admissible.
It is ok to discover relevant evidence if it is reasonably calculated to lead to admissible evidence.
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discovery
scope of discovery
privilege
You can object to discovery on the basis of evidentiary privilege (like confidential communications between atty/client)
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scope of discovery
work product (trial prep materials)
Work product is material prepared in anticipation of litigation. It is generally protected from discovery.
Work product does not have to be generated by a lawyer.
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scope of discovery
work product - qualified work product
Qualified work product is work product that may be discoverable if there is 1) substantial need and 2) not otherwise available
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discovery
scope of discovery
work product - absolute work product
Absolute work product is work product that cannot be discovered.
Mental impressions, opinions, conclusions, legal theories.
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discovery
scope of discovery
work product - asserting privilege or work product
If you withhold discover or seek a protective order based on privilege or work product, you must claim the protection EXPRESSLY AND describe the materials in detail.
You do this in a document that lists the materials protected by date, author, recipient, and privilege or protection claimed. (This is a privilege log.)
If you inadvertently produce privileged or protected material, you should notifiy the other party promptly. The other party must return, sequester, or dstroy it pending decision by the court about whether there has been a waiver.
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discovery
| enforcement of discovery rules
discovery disputes
| sanctions against a party
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discovery
enforcement of discovery rules
discovery disputes - 3 ways
1. protective order
2. partial request to discovery request
3. no response to discovery request
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enforcement of discovery rules
discovery disputes - protective order
1. If responding party thinks a discovery requests subjects it to annoyance, embarrassment, undue burden, or expense, move for protective order
2. Must certify that she tried in good faith to work it out w/o court involvement and that she asked the other side to meet and confer
3. If the court agrees, it can a) deny discovery, b) limit it, or c) permit it on certain terms
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discovery
enforcement of discovery rules
discovery disputes
partial response to discovery request
partial response to discovery request - when responding party answers some questions but objects to others.
Requesting party will make a motion to compel answers, and court will decide whether the objections were legitimate.
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enforcement of discovery rules
discovery disputes
no response to discovery request
no response to discovery request - when responding party fails completely to attend her depo, respond to interrogs, or respond to RFPs
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enforcement of discovery rules
sanctions against a party
The party seeking sanctions must certify that she tried in good faith to get the info w/o court involvement.
Action depends on partial or no response
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enforcement of discovery rules
sanctions against a party for partial response
2 steps
1. Move for an order compelling the party to answer the unanswered questions and for costs (including atty fees) of bringing the motion.
2. If the party violates the order compelling him to answer, "merits" sanctions plus costs (incl atty fees for the motion) AND could be held in contempt for violating a court order (except no contempt for refusal to submit to medical exam)
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discovery
enforcement of discovery rules
sanctions against a party for no response
1 step
| "Merits" sanctions plus costs (an atty fees for the motion)
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enforcement of discovery rules
merits sanctions
Merits sanctions - choices available to judge
1. Establishment order
2. Strike pleadings of the disobedient party (re: issues of discovery)
3. Disallow evidence from the disobedient party (re: issues of discovery) (ultimate sanction)
4. Dismiss P's case (if bad faith shown)
5. Enter default judgment (if bad faith shown)
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enforcement of discovery rules
failure to produce ESI lost in good faith
If a party failed to make reasonable efforts to preserve ESI, court can enter orders fixing the harm to the other party.
No merits sanction unless the loss was intentional.
