Civ Pro Final 2 Flashcards
(49 cards)
Rule 37 Discovery Sanctions
(b)(2) Medina
A court may impose sanctions, including default judgment, when a party fails to comply with discovery orders. In determining whether a “litigation-ending” sanction is appropriate, courts consider several factors, including: (1) the willfulness or bad faith of the noncompliant party;(2) the history of noncompliance;(3) the effectiveness of lesser sanctions;(4) whether the noncompliant party was warned of possible sanctions;(5) the client’s complicity in the noncompliance; and (6) any prejudice to the moving party.
Rule 37 Discovery Sanctions
Spoliation Definition
Is the destruction or significance alteration of evidence, or the failure to preserve property for another’s use as evidence impending or reasonably foreseeable litigation. The determination of an appropriate sanction for spoliation is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis
Rule 37 proving spoliation
Party seeking an adverse inference instruction (or other sanctions) based on the spoliation of evidence must establish:
(1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
(2) That the records were destroyed with a “culpable state of mind” and
(3) That the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense
Rule 37 Spoliation inference
Spoliation of evidence germaner to proof of an issue at trial can support an inference that evidence would have been unfavorable to the party responsible for its destruction
Rule 37 Spoliation litigation hold
Stop routine document destruction and place a “litigation hold” to ensure preservation of relevant document
Rule 37 Counsel Must
Identify all potential relevant information, place it on hold
Identify clients document retention policy, data retention
Speak with clients information technology personal about backup procedures and how its clients data recycling policy works
Attorney should speak with “key players” in the litigation - where/how do they store information?
Rule 37 Spoliation counsel duty to preserve
Litigation hold
Reissue it
Communicate with “key players”
Employers with relevant information
Communicate preservation duties to them clearly, and periodically remind this duty to preserve
Instruct all employees to produce electronic evidence of relevant information
Rule 37 What if there are too many “key players” for an attorney to personally speak with?
Reasonable steps to see that sources of relevant information are located
Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information
Rule 37 Continuing duty
Reissue notice of litigation hold; remind client periodically
Must ensure discoverable information is not lost
Must ensure discoverable information is preserved
Rule 41(b)
Involuntary dismissal. If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claims against it.
Rule 43 Administrative exhaustion
Not in the rule but its an affirmative defense
Raised by the defendant, does not have to be pleaded in a complaint
In other contexts exhaustion is treated as an affirmative defense, raised by the defendant
Similarly exhaustion under the PLRA is treated as an affirmative defense - does not have to be pleaded in a complaint
Rule 45 Subpoena
form and contents
(A) Requirements—In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action and its civil-action number;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text of Rule 45(d) and (e).
Allows a subpoena of a non-party
Rule 50 (a) directed verdict
If a party has been fully heard on an issue, and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, court may (a) resolve the issue against the party; and (b) grant a motion for judgment as a matter of law.
After a party has fully presented their case on an issue, a party may move for judgment as a matter of law, arguing that a jury has no legally sufficient basis to rule for that party
The motion must be made before the case is submitted to a jury
“Directed verdict”
Rule 50 (b) Judgment as a Matter of Law (after trial)
If 50(a) motion has been filed, the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial.
§ In resolving a rule 50 motion, the court should consider the evidence in the light most favorable to the non-moving party and grant the judgment only where the evidence so strongly and so favorably points in favor of the moving party that reasonable people could not arrive at a contrary verdict.
After a rule50(a) motion is denied, and a jury delivers a a verdict, a party may make a Renewed motion for a judgement as a matter of law (and can seek a new trial under rule 59)
Motion is made after the jury verdict
Rule 51 Jury Instructions
Parties can submit their own jury instructions to the court; court may use them, may not
The two audiences
The jury
Simple so they can understand what the law means, accurate legal statements for people who don’t know the law
need streamlined, simplified, easy-to-follow path through the law and evidence
Appellate court
Has to be nuanced, perfectly balanced, all-inclusive statement of the law
Rule 55 Default Judgement
When a defendant has failed to move case forward
Rule 55 - Default Judgment
Full Rule
Under Rule 55(a), when a defendant fails to plead or otherwise defend and that failure is shown by affidavit or otherwise, the clerk must enter default. Under Rule 55(b)(1), if the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk must, upon request and affidavit, enter default judgment against a non-appearing defendant who is neither a minor nor incompetent. Under Rule 55(b)(2), in all other cases, the plaintiff must apply to the court, which may conduct hearings or make referrals to determine damages, establish the truth of allegations, or investigate other matters. Under Rule 55(c), the court may set aside an entry of default for good cause and may set aside a default judgment under Rule 60(b).
Rule 56 Summary Judgement
A party may move for summary judgment, identifying each claim or defense, or the part, that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
Rule 56 Summary Judgement Takeaways
There must be no genuine dispute as to any material facts
The law required one outcome
There can be disputes about non-material facts
A party can move for partial summary judgement - identifying some claims that should be dismissed (and not others)
Rule 56 Summary Judgement (b) Time to file a motion
Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery
Anytime until 30 days after the close of all discovery
This is because trial is prepared
Right until before trial
Rule 56 (c)(1) Supporting Factual Positions.
Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
citing to particular parts of materials in the record, including
depositions,
documents,
electronically stored
information,
affidavits or declarations,
Both parties agree about a
fact, don’t have to dispute
stipulations (including those made for purposes of the motion only),
admissions,
interrogatory answers, or
other materials;
Can go outside of list
Rule 56 (c)(B) Moving because you can or adversary cant prove the case
showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact
Rule 56 (3) Materials Not Cited.
The court needs to consider only the cited materials, but it may consider other materials in the record.
Rule 56(e)Failing to Properly Support or Address a Fact.
If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c) , the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it; or
(4) issue any other appropriate order.
