Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

1. Statutory Analysis: Most states have long-arm statutes that allow PJ over Ds who: Are (1) present in the state and (2) served with process; OR Are domiciled in the state; OR Commit certain acts in the state (i.e. commit a tort).
   CA’s Long Arm State: Gives CA courts power over any person or property over which the state can constitutionally exercise jurisdiction.
2. Constitutional Analysis: Personal jurisdiction is constitutional if there are 1. minimum contacts and 2. notice.
   (1) D must have sufficient minimum contacts with the forum state so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. 3 Balancing Factors: contacts, relatedness, and fairness.
   (1a) Minimum Contacts requires Purposeful Availment of the benefits and protections of the forum state’s laws, and Foreseeability that the defendant could be sued in this forum
   (1b) Relatedness requires the claim to arise from or be related to D’s contacts with the forum through General Jurisdiction (D can be sued in the state where his domicile is or in the state where he is present and is served process) or Specific Jurisdiction (claim arises form or is related to D’s contacts with the forum)
   (1c) Fairness must be met for SPECIFIC JURISDICTION ONLY. Courts consider convenience, state interest, and other interests
   (2) Notice through Service of Process: Due Process requires notice of the suit by a REASONABLE method AND the opportunity to appear and be heard. Must be reasonably calculated under the circumstance. “Process” requires 1. SUMMONS (formal court notice) and 2. COPY OF THE COMPLAINT

Question 2

Subject Matter Jurisdiction

Answer 2

2 ways to get into federal court:

1. Diversity of Citizenship: Case is either: (1) P and D are citizens of different states (diversity of citizenship) or (2) P and D are a citizen of a state and a citizen of a foreign country (alienage diversity), AND the amount in controversy EXCEEDS $75,000. Citizenship is based on the parties’ domicile at the time of filing. Can Aggregate all claims of ONE P against ONE D, even if claims not related. Cannot aggregate claims of multiple plaintiffs against one D or one plaintiff against multiple Ds, unless Ds are jointly liable.
2. OR Federal Question: P’s claim must arise under federal law and enforce a federal right.

Question 3

CA Subject Matter Jurisdiction

Answer 3

A CA Superior Court has general subject matter jurisdiction over a case, so it can hear any case not subject to exclusive federal jurisdiction (i.e. bankruptcy, securities, antitrust, patent infringement).

Classifications:
1. Limited Civil Case: Amount in controversy (exclusive of attorney’s fees, interest, and costs) does not exceed $25,000 (no claimant can recover more than $25,000); classification must be noted on the complaint
2. Unlimited Civil Case: amount in controversy (exclusive of attorney’s fees, interest, and costs) exceeds $25,000 (claimant can recover any amount) – must be claiming at least $25,000.01 in damages.
3. Small Claims Case: Individual Ps, Amount in controversy $7,500 or less;
If P is an Entity: Amount in controversy $5,000 or less.

Reclassification: Automatic: If P amends complaint in a way that changes the classification (e.g., changes amount in controversy), the clerk of court automatically reclassifies the case.
On Motion: Party or court can move to reclassify if the court (1) gives notice to all parties and (2) holds a hearing. Court may look beyond pleadings, but does not consider merits of underlying claim
Unlimited to Limited reclassification is granted if judge is convinced that matter (1) will necessarily result in a verdict of $25,000 or less; or (2) more than $25,000 is virtually unobtainable.
Limited to Unlimited classification is granted if Judge is convinced there is a possibility verdict will exceed $25,000.

Question 4

Supplemental Jurisdiction

Answer 4

If diversity requirements or federal question requirements cannot be met for a supplemental claim, a supplemental claim can still be brought with an original claim with SMJ if it shares a Common Nucleus Of Operative Fact (same Transaction/Occurrence)

DIVERSITY LIMITATION: Where the original claim is brought under DIVERSITY SMJ, a PLAINTIFF cannot use supplemental jurisdiction to bring another claim UNLESS there are multiple plaintiffs and one of them does not meet the amount of in controversy requirement

Discretionary Factors: Court has discretion NOT to hear supplemental claim if: federal Q is dismissed early in proceedings; state law claim is complex; or state law issue would predominate.

Question 5

Removal

Answer 5

1. Only Ds can remove a case from state court to the federal district court embracing the state court if there is federal SMJ.
2. ALL Ds who have been served with process must AGREE to remove.
3. D must remove within 30 days after service (not filing) of the first document (order, motion, etc.) that shows the case is removable (usually service of process). Clock starts over if new D is served
4. For a diversity SMJ case, No removal is allowed if any D is a citizen of the state where case is pending
5. For diversity SMJ case, No removal more than 1 year after case was originally filed in state court
6. REMAND: If defect was due to lack of SMJ, it must be remanded and there is no time limit to order remand. If there SMJ, but there is a defect of the SPECIAL DIVERSITY REMOVAL rules, Plaintiff must move to remand case within 30 day or else the plaintiff risks waiving the right to remand and the case stays in federal court

Question 6

Choice of Law (Erie Doctrine)

Answer 6

1. In diversity cases, federal court must apply state substantive law
2. A State law is CLEARLY SUBSTANTIVE and should be used in diversity case when it regarding one of these 4 issues: 1) Elements of a claim or defense; 2) SOL; 3) Rules for tolling SOL; and 4) Conflict of law rules.
3. If not clearly substantive, look to see if there is some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law. If so, apply the federal law, as long as it is valid.
4. If no federal law on point, balance these factors to see if state law is substantive:
   a) Outcome Determinative: If applying or ignoring state rule would affect outcome of case, it is probably substantive.
   b) Balance of Interests: Does either federal or state system have strong interest in having its rule applied?
   c) Avoid Forum Shopping: Should probably apply state law if ignoring it would cause forum shopping toward federal court.

Question 7

Venue

Answer 7

1. Once established SMJ to sue in federal court, which federal court can the plaintiff sue in? P may lay venue in any district where (1) ALL Ds reside if they reside in the same state, or (2) a substantial part of the claim arose or substantial part of property in lawsuit is located.
2. Transfer of Venue: A federal court in CA can transfer a case to another federal district court outside of the CA since federal district courts are considered to be part of the same court system. Transfer of case to another venue in the SAME judicial system is allowed if case could have been filed there originally. If transferring from a proper original venue, Court can order transfer based on (1) convenience of the parties and witnesses and (2) in the interest of justice (3) so long as there is PJ and SMJ at the new district. Court has discretion based on: (1) Public factors (what law applies; what community should be burdened with jury service); and (2) Private factors (convenience). If transferring from an Improper Original Venue: Court has discretion to order transfer in the interests of justice or dismiss.
3. Which law applies? If transferring from a Proper Original Venue, Apply the law of the TRANSFEROR court, unless the transfer was made to enforce a forum selection clause, then use the law of the TRANSFEREE court. If transferring from an Improper Original Venue: Apply the law of the transferee court
4. Forum Non Conveniens: If there is a more appropriate court to which transfer is impossible because it is in a different judicial system (or foreign country), a court may 1) dismiss (usually without prejudice) or 2) stay the action to let P sue there.

Question 8

CA Venue

Answer 8

1. Venue is okay in the county where any D resides when the case is filed. If all Ds are non-residents of CA, venue is okay in any county, or where K entered into or injury occurred.
2. Transfer: A California state court cannot transfer a case to a different state. If transferring from a Proper Original Venue: D can move to transfer to proper county if:
   (1) Impartial trial cannot be had in original venue; or
   (2) Convenience of witnesses and justice would be promoted; or
   (3) No judge is qualified to act.
   If transferring from an Improper Original Venue: D must file and serve a notice of motion for an order transferring the case, together w/ proof of service of the documents on P.
3. Inconvenient Forum - By statute in CA, state courts may 1. dismiss the action or 2. stay the action where in the interest of substantial justice an action should be heard in a forum outside of California (in different state or country).

Question 9

Service of Process

Answer 9

1. Plaintiff must give defendant notice of lawsuit by serving process, which includes summons and a copy of the complaint. It must be served within 90 days of filing the complaint
2. Service must be done by a non-party to the case who is over 18 yers old. It can be completed by:
   a) Personal Service: Given directly to D personally anywhere in forum state.
   b) Substituted Service to someone who lives at D’s usual abode and is of suitable age and discretion who resides there.
   d) Service on D’s Agent: Okay if receiving service is within scope of agency (works for corporations)
   e) State Law: Any method permitted by state law where the federal court sits OR the state in which service is to be served on defendant (works for corporations)
3. Waiver by Mail: Waiver by mail is allowed if D returns waiver within 30 days; If D doesn’t return waiver, he must pay for cost of service
4. Immunity: D is immune from service in a federal civil case if D is in the state to be a witness or party in another civil case (not true for CA).

Question 10

CA Service of Process

Answer 10

A plaintiff can serve a defendant by:

1) Personal Service: On D anywhere in forum state.
2) Substituted Service: ONLY IF, with reasonable diligence, D cannot be served personally (must try to serve first before SS), then (1) at D’s usual abode; (2) to a competent member of household at least 18; (3) inform person of contents; and (4) also mail process to D first-class, postage prepaid (SS effective 10 days after mailing).
3) Corporations/Businesses: to agent, officer, or general manager (registered agent may always be served) (serve personally or SS).
4) Service by Publication: Only on affidavit from P’s attorney that D cannot be served by reasonable diligence in any other way.

Waiver of Service by Mail: Same as federal court, but service complete when D executes acknowledgment form and D must respond in 20 days.

Where: Can serve process out-of-state in any manner allowed by CA law or by mail, postage prepaid, return receipt requested.

Immunity from Service: No immunity even if the person is in CA as witness or party in another civil case (unlike federal court, which would give the person immunity from service for a federal case).

Question 11

Service in a Foreign Country

Answer 11

Service to a defendant in a foreign country may be completed by A method allowed by international agreement (for example, the Hague Convention) or as directed by American court, or a method allowed by the foreign country’s law

Question 12

Rule 11 for Pleadings

Answer 12

Attorney must sign all pleadings, certifying that:

(1) No improper purpose;
(2) legal contentions are warranted by law; and
(3) factual contentions and denials have evidentiary support.

Sanctions: Intended to deter (not punish); often nonmonetary; if monetary, often paid to court. **CA: Court can order party or his attorney or both to pay expenses and attorney’s fees incurred by other party because of bad-faith or frivolous tactics in litigation (no safe harbor)

Safe Harbor: Party seeking sanction must serve motion on opponent (can’t file right away). Party allegedly in violation has 21 days to withdraw and fix document, unless court raises Rule 11 sua sponte (on its own)
**CA: gives party the safe harbor even if court raises sua sponte

Question 13

Requirements of a Complaint

Answer 13

1. A short plain statement of claim, showing entitlement to relief and sufficient facts to support a plausible claim; Plaintiff MUST plead facts supporting plausible claim (or else subject to a 12b6 motion to dismiss failure to state a claim)
   * *CA: P must allege the ultimate facts on each element of each cause of action (More detailed than federal court)
2. Statement of SMJ; (not needed in CA state court)
3. demand for relief sought (damages, injunction, declaratory judgment). (**CA - damages not required if (1) personal injury; (2) wrongful death; or (3) punitive damages. In these cases, Defendant can request statement of damages which P must provide within 15 days)
4. **CA: must state if a case is a Limited Civil Case
5. CA: Fictitious Defendants - P may name D as a “Doe” defendant if:
   (1) P is genuinely unaware of D’s true identity,
   (2) states the cause of action against the Doe defendant, and
   (3) substituted the true D within 3 years of filing complaint.

Question 14

Defendant’s Response to Complaint

Answer 14

1. Rule 12: Requires D to respond in one of 2 ways: (1) by motion or (2) by answer. Either must be within 21 days after service of process (or risk default).
   **CA: D responds through: (1) general demurrer, (2) special demurrer, (3) motion to quash service of summons, (4) motion to strike, and (5) answer.
   D must respond within 30 days after service of process, or if demurrers are denied, then 10 days after ruling
2. Motions include:
   12(e) Motion for more definite statement (because pleading so vague that D can’t frame a response)
   12(f) Motion to strike (for immaterial things).
   Rule 12(b) Motions to Dismiss for:
   (1) Lack of SMJ* — never waived; can be raised even after trial.
   (2) Lack of PJ, (3) improper venue, (4) insufficiency of process (problem with the papers), (5) insufficient service of process - these are WAIVED if not brought in the defendant’s response (pre-answer motion or answer)
   (6) failure to state a claim; (7) failure to join indispensable party - can be raised anytime throughout trial, but not later on appeal

Answer: If D makes NO motions: Must serve answer within 21 days after service of process. If D makes a Rule 12 motion, and it is denied: D must serve answer within 14 days after notice of denial.
D’s Answer Must Both:
1. Respond to Allegations of Complaint by: (1) Admit; (2) deny; or (3) state that you lack sufficient information to admit or deny (acts as a denial). Failure to deny can constitute an admission on any matter except damages.
2. Raise Affirmative Defenses (otherwise D risks waiver) (i.e. SOL, SoF, res judicata, self-defense). (P does not need to respond to affirmative defenses)

Question 15

Counterclaim / CA Cross Complaint against Plaintiff

Answer 15

Offensive claim by defendant against plaintiff, filed with D’s answer within 21 days of service of process

Two Types of Counterclaims:

1. Compulsory: If claim arises from same TO, must be filed in this case or else waived and cannot sue on it at any time, unless the case was dismissed and defendant never had to answer
2. Permissive: If claim does NOT arise from same TO, party may file it with their answer in this case or assert it in a separate case.

SMJ: If counterclaim does NOT invoke diversity or FQ jx, check for supplemental jurisdiction

Question 16

Cross-Claim / CA: Cross Complaint against Co-Party

Answer 16

Offensive claim by defendant against a co-party which MUST arise from the same T/O as underlying action. Always permissive. Never compulsory.

If D impleads a party, and that TPD wants to assert a claim against P, no diversity is required to do this (but P cannot assert a claim against that TPD since that would violate the supplemental SMJ limitation).

Question 17

Amending Pleadings

Answer 17

1. Right to Amend: P has right to amend once within 21 days after D serves first Rule 12 response. D has right to amend once w/in 21 days of serving answer. If there is no right to amend, can seek leave of court. Court will still grant leave to amend “if justice so requires” and considers Factors such as: (1) delay, (2) prejudice, and (3) futility of amendment.
   * *CA - P has right to amend BEFORE D files an answer or demurrer. AFTER demurrer BUT BEFORE TRIAL, either party can amend ONCE. Any party can seek leave from the court to amend anytime; granted unless delay or prejudice
2. Variance: When evidence at trial does not match what was pled. If party tries to admit evidence not in pleadings at trial, and opposing party does not object, At or after trial, party can move to amend complaint to conform to new evidence. If party tries to admit evidence not in pleadings and opposing party objects, evidence inadmissible because evidence is at “variance with the pleadings”
3. Relation Back – Amendment after SOL has run: To Join New Claim: Amended pleadings relate back if they concern the same T/O as the original pleading. Amended pleading is treated as though it was filed when the original was filed, thus avoiding SOL problem.
   To Change a Defendant after SOL Runs: This will relate back if It concerns the same conduct, T/O as the original; The new party knew of this action within 90 days of filing; and; New party also knew that but for a mistake he would have been named original

Question 18

CA: Defendant Demurrer

Answer 18

D responds to P’s complaint through: (1) general demurrer, (2) special demurrer, (3) motion to quash service of summons, (4) motion to strike, and (5) answer.

1. Motion to Quash Service of Summons Used to assert:
   (1) lack of PJ;
   (2) improper process; or
   (3) improper service of process.
   Timing: these are waived if not made before or with the filing of a demurrer, motion to strike, or answer
2. Motion for Forum Non Coveniens: Must be made before filing of demurrer or motion to strike, or else waived, but Can be made after answer
3. General Demurrer: Used to assert any of these defenses: (1) failure to state facts sufficient to constitute cause of action; OR (2) lack of SMJ in CA. Parties must meet and confer before filing demurrer, or get 30 day extension if good faith effort was made. If they met and conferred and still want to file demurrer, then must file declaration saying they met and conferred
4. Special Demurrer: Used to assert:
   (1) complaint is uncertain, ambiguous, or unintelligible;
   (2) complaint is unclear about which theories of liability are asserted;
   (3) lack of legal capacity;
   (4) existence of another case between the same parties on the same cause of action;
   (5) defect or misjoinder of parties;
   (6) failure to plead whether K is oral or written; or
   (7) failure to file a certificate
   * *Cannot be used in limited civil cases
5. Motion to Strike: Used to strike all or part of a complaint as irrelevant, false, or improper
   Anti-SLAPP: If D makes showing that P’s cause of action arises from D’s protected activity (free speech, petition government), burden shifts to P to show probability of winning on the merits.
   SLAPPback Suit: if D wins an anti-SLAPP motion, he can sue P for malicious prosecution.
6. Answer: Basically same requirements as in federal court (admit, deny, or lack sufficient information). Verified (under oath) complaints by plaintiff call for verified answers by defendant

Question 19

Impleader / Cross Complaint against Third Party Defendant

Answer 19

1. A Defendant can bring in a third party defendant if party must INDEMNIFY the Defendant or is jointly liable with D on the underlying claim.
2. D can add as of right within 14 days of serving original answer, after that must make a motion to add TPD (i.e. motion to serve TPD) which is then within trial court’s discretion whether to grant or deny
3. Once joined, all parties can bring claims against the other so long as SMJ is met (but P’s claim against TPD not allowed if it would destroy diversity).

Question 20

Joinder

Answer 20

Joinder is when a party brings an additional claim against a new party in the same case.

Permissive Joinder: A party in the original claim MAY add a claim against a new party if the claim arises from the same transaction or occurrence, has at least one common question of law or fact, and also meets subject matter jurisdiction

Compulsory Joinder: A party in the original claim MUST bring a new party if that party is NECESSARY and INDISPENSABLE and Can be joined feasibly (court has PJ and SMJ over party). A party is NECESSARY if (a) without absentee, the court cannot accord complete relief; (b) Absent party’s interest may be harmed if he isn’t joined; or (c) absent party claims an interest which subjects a party (usually D) to multiple obligations. If necessary party cannot be joined, the court must dismiss or proceed without, based on availability of alternative forum; likelihood of prejudice; ability to shape relief to avoid prejudice; whether P will be deprived of adequate remedy.

Question 21

Intervention

Answer 21

A party that wants to join the pending suit may intervene

Intervention of Right: A party has the right to intervene if its interest may be harmed if he is not joined and his interest is not adequately represented now. Or statutory right to intervene.

Permissive Intervention: A party may intervene if a claim or defense and the pending case have at least one common question; okay unless there is delay or prejudice.
**CA: In order to be permissive, the intervenor’s interest in the litigation must be direct and immediate.

No supplemental jx over claim by or against intervenor if he is not diverse from opposing party.

Question 22

Interpleader

Answer 22

An action brought by P to determine who has a valid claim to property. Stakeholder holding property forces all potential claimants into single lawsuit to avoid multiple litigation and inconsistency.

Relaxed SMJ under Fed. Interpleader Act: allows interpleader actions to be brought if (1) any 2 claimants are diverse, and (2) amount in controversy is $500 or more (complete diversity not required).

Question 23

Federal Class Action Lawsuits

Answer 23

Requirements to bring class action: (CANT)

(1) Commonality (questions of law or fact common to class);
(2) Adequacy of representative (representative will fairly and adequately represent class);
(3) Numerosity (too many for joinder – 40 or more Ps usually sufficient); and
(4) Typicality (representative’s claims typical of class’s).

Types: Case must fit w/in one 3 types (DIP):
Type 1: Prejudice: Class treatment is necessary to avoid harm to class members or opposing party (Ex: Bankruptcy proceedings)
Type 2: Injunction or declaratory judgment: Members of class treated alike by D; (Ex: employment discrimination)
Type 3: Damages: Must show: (i) common questions predominate over individual questions and (ii) class action is superior method to handle dispute. (Ex: mass torts)

Court must certify class and appoint class counsel.

Settlement or Dismissal Must be approved by court.

SMJ: Satisfied if representative is diverse from all Ds and his claim exceeds $75,000.
Class Action Fairness Act of 2005 (CAFA): Grants SMJ if (1) any class member is diverse from any D and (2) more than 100 class members, and (3) if aggregated claims of class exceed $5 million.

Notice: Requires court’s approval, notice to all class members, and a second chance to opt out.

Question 24

CA Class Action Lawsuits

Answer 24

Requirements:

(1) Ascertainable class and
(2) A well-defined community of interests. Court must consider whether (i) common questions predominate; (ii) rep is adequate; AND (iii) class will result in substantial benefit to parties and court

Only one type of class action, no individual notice required; court decides who bears costs of notice and whether members can opt out; court not required to appoint class counsel; Amount in Controversy: Aggregate all class claims (if > $25,000 unlimited civil action).

Question 25

11th Amendment

Answer 25

Federal courts cannot hear a private party’s claim against a State government
Exceptions:
1. A statute can allow for this (such as civil rights).
2. When P is suing a state official.
3. State waives this immunity

Question 26

Rule 26(f) Conference

Answer 26

21 days before the court’s scheduling order, parties must “meet and confer” to discuss production of required initial disclosures, called the 26(f) Conference.

Must present to the court a detailed discovery plan no later than 14 days after Rule 26(f) conference.

Required Disclosures must be produced even though no one asks for it within 14 days of the rule 26(f) conference, including

1. Initial Disclosures: Parties must identify
   (1) persons and documents and tangible things likely to have discoverable info that the disclosing party may use to support its claims/defenses;
   (2) computation of damages;
   (3) insurance coverage.
2. Experts: Must identify experts who may be used at trial and produce written report containing opinions, data used, qualifications and compensation.
3. Pretrial Evidence: 30 days before trial must give detailed information about trial evidence.

Question 27

Discovery Tools

Answer 27

Discovery tool that can be used BEFORE 26(f) conference, after 21 days of service of process on defendant. Requests for Production: Request to parties or nonparties (if subpoenaed) that he make available for review and copying documents or things or permit entry upon designated property for inspection. Must respond within 30 days. **CA - no limit in unlimited civil case.

Discovery Tools that cannot be used until AFTER Rule 26(f) Conference include:

1. Depositions (oral or written): can depose nonparties (if subpoenaed) or parties (even organizations). Limit 10 depos without court approval, Cannot exceed 1 day of 7 hours without court permission (CA has no limit on # and time)
2. Interrogatories: Questions propounded in writing to another party, (not nonparties) to be answered in writing under oath. Limit 25 without court approval (CA = 35). Can only say you don’t know answer after reasonable investigation. Must respond within 30 days.
   **CA: Form Interrogatories: NO LIMIT.
   Special Interrogatories: no more than 35 (in unlimited civil case) without declaration supporting need for more; responding party can seek protective order
3. Physical or Mental Exam: of parties only, Only obtained through court order upon showing (1) health in actual controversy and (2) good cause.
4. Request for Admission: request by one party to another (only parties) to admit truth of any discoverable matters. Must respond within 30 days to admit, deny, or object. If party fails to deny, the matter is deemed ADMITTED (CA: limited to 35 in unlimited civil case but can request unlimited amounts for genuineness of document)

Duty to Supplement: If party learns that its response to required disclosure is incomplete or incorrect, it has an affirmative duty to supplement response
**CA: No duty to supplement unless requested by other side

CA Limited Civil Cases:
only 1 deposition; combined total of 35 for interrogatories, inspection demands and requests for admission; additional discovery only w/court order

Question 28

Scope of Discovery

Answer 28

Can discover

(1) any non-privileged matter
(2) relevant and proportional to a claim or defense (something in the pleadings)
(3) that is reasonably calculated to lead to discovery of admissible evidence.

Work Product (or “trial preparation materials”): Material prepared in anticipation of litigation is generally not discoverable/privileged (does not have to be attorney work product). Absolutely Protected (CLOM): (1) Mental impressions; (2) opinions; (3) conclusions; and (4) legal theories. 
Exceptions: Witness statement discoverable if (1) substantial need and (2) not otherwise available. Identity of people with discoverable info is NOT attorney work product, even if it was obtained in anticipation of litigation.

Expert Witnesses: May take deposition of any expert “whose opinions may be presented at trial.” If expert retained in anticipation of litigation but will not testify (i.e. consulting expert), then no discovery absent “exceptional need.”

• *CA: Anything relevant to the claim or defense is subject to discovery (broader than in federal standard Exceptions:
  (1) Privileged material is not discoverable;
  (2) Privac: Court balance need for discovery against need for privacy;
  (3) Attorney work product (impressions, conclusions, opinions, and legal research never discoverable; other work discoverable to avoid unfair prejudice or injustice).
  (4) Experts: must disclose expert witness information, but not consulting experts.

Question 29

Enforcement of Discovery Rules

Answer 29

1. Protective Order: Receiving party seeks protection from court over specific disclosure (i.e. over burdensome, or involves trade secret). Must certify that the party tried in good faith to meet and confer with other side to resolve. Court can deny, limit, or permit discovery on specified terms (CA: protective order available to protect against unwarranted annoyance, embarrassment, oppression, burden or expense)
2. Partial Violation: Receiving party answers some discovery requests and objects to others. Must get order compelling party to answer questions plus costs; if party violates compelling order, heavy sanctions plus costs (including attorney’s fees), maybe even contempt. Motion to Compel: Party seeking the order must certify that they attempted in good faith to meet and confer with the other party without court intervention before bringing the motion to compel. If so, the court must award party’s reasonable costs and fees in bringing motion unless nondisclosure was substantially justified.
3. Total Violation: Receiving party fails completely to respond; heavy sanctions plus costs. Heavy Merits Sanctions include any of the following: (1) establishment order (establish facts as true); (2) strike pleadings (of disobedient party as to issues RE discovery); (3) disallow evidence; (4) dismiss P’s case if bad faith shown; or (5) default judgment against D if bad faith shown. Sanctions may only be imposed for violating a court order on discovery

Question 30

Discovery of Electronically Stored Information

Answer 30

Party does not need to produce ESI if party shows it is not reasonably accessible because of undue burden (but court may order production and cost shifting/sharing).

Safe Harbor: When electronic discovery is destroyed or deleted, sanctions may NOT be imposed if the deletion is a routine, good faith operation of an electronic information system.

Litigation Hold: BUT party must institute a litigation hold when litigation is reasonably anticipated.