Civil Procedure

Question 1

In what manner should the FRCP be construed and administered?

Answer 1

They should be construed, administered, and employed by the courts and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. FRCP 1.

Question 2

When must a party file its corporate disclosure statement?

Answer 2

with its first appearance, pleading, petition, motion, response, or other request addressed to the court. FRCP 7.1

Question 3

Is any specific form required for pleadings?

Answer 3

No. Each allegation must be simple, direct, and concise. No specific form is required. FRCP 8.

Question 4

For a claim alleging fraud or mistake, what must a party plead?

Answer 4

A party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. FRCP 9.

Question 5

As it relates to motions and pleadings, for what reasons can a court impose sanctions upon a party upon request?

Answer 5

• presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
• the claims, defenses, and other legal contentions are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
• the factual contentions have no evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• the denials of factual contentions are not warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

FRCP 11

Question 6

If a party files a motion for sanctions, how can the other party try to correct the alleged error or violation?

Answer 6

If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. FRCP 11.

Question 7

Can the court raise potentially sanctionable conduct on its own?

Answer 7

Yes - the court, on its own, may issue an order directing a party to show cause as to why its conduct should not be sanctioned under Rule 11. FRCP 11.

Question 8

When must a defendant file a responsive pleading to a complaint?

Answer 8

Within 21 days after being served with the summons and complaint; or, if the defendant waived service, within 60 days after the request for a waiver was sent (90 days for defendant outside US). FRCP 12.

Question 9

What’s the deadline for serving an answer to a crossclaim or counterclaim?

Answer 9

21 days after being served with the pleading that contains the counterclaim or crossclaim. FRCP 12.

Question 10

What defenses can a party raise by motion under Rule 12?

Answer 10

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

FRCP 12.

Question 11

When can a party file a motion for judgment on the pleadings?

Answer 11

After the pleadings are closed but early enough not to delay trial. FRCP 12.

Question 12

If the court determines at any time throughout the case that it lacks subject matter jurisdiction, what must it do?

Answer 12

Dismiss the action. FRCP 12.

Question 13

When can a party amend a pleading?

Answer 13

A party may amend its pleading once as a matter of course no later than:

(A) 21 days after serving it, or

(B) 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

FRCP 15.

Question 14

What happens if a party objects at trial that the evidence is not within the scope of the issues raised in the pleadings?

Answer 14

the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

FRCP 15.

Question 15

In what circumstances can plaintiffs join in a single action?

Answer 15

Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

FRCP 20

Question 16

In what circumstances can defendants be joined in one action as defendants?

Answer 16

Persons…may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

FRCP 20

Question 17

When can a court add or drop a party or sever claims against a party?

Answer 17

On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. FRCP 21.

Question 18

When must a party make its initial disclosures under Rule 26?

Answer 18

At or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order. FRCP 26(C).

Question 19

What’s the scope of discovery under the FRCP?

Answer 19

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. FRCP 26(b).

Question 20

What factors are considered in evaluating if a discovery request is proportional to the needs of the case?

Answer 20

• the importance of the issues at stake in the action;
• the amount in controversy;
• the parties’ relative access to relevant information;
• the parties’ resources;
• the importance of discovery in resolving the issues; and
• whether the burden or expense of the proposed discovery outweighs its likely benefit.

FRCP 26(b)

Question 21

Does information have to be admissible to be discoverable?

Answer 21

No. FRCP 26(b)

Question 22

What’s the work product rule set forth in Rule 26?

Answer 22

Ordinarily, a party may not discover documents and 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, indemnitor, insurer, or agent). FRCP 26(b)(3).

Question 23

What are the exceptions to the work product rule set forth in Rule 26?

Answer 23

But subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

FRCP 26(b)(3)

Question 24

If the court orders the production of materials that normally would be protected by the work product rule, what must always be protected from disclosure?

Answer 24

If the 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. FRCP 26(b)(3)(B)

Question 25

Under the FRCP, can a party depose an expert witness?

Answer 25

Yes - see FRCP 26(b)(4).

Question 26

Does a party have to disclose an expert witness's draft reports?

Answer 26

Generally, no. FRCP 26(b)(4).

Question 27

Are communications between an attorney and his/her expert witness discoverable?

Answer 27

Generally, no. Communications between the party's attorney and an expert witness are generally protected by the work product rule, regardless of the form of the communications. FRCP 26(3)(C).

Question 28

In what circumstances can the opposing party obtain discovery of communications between an attorney and his/her expert witness?

Answer 28

Communications between an attorney and his/her expert witness can be discovered if they: (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 expressed. FRCP 26(b)(3)(C)

Question 29

Can a party obtain discovery of facts and/or opinions held by an opposing party's expert witness if the expert witness has been retained or specially employed by the opposing party in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial?

Answer 29

Generally, no. FRCP(b)(4)(D)

Question 30

In general, what's the earliest time that a party can seek discovery under the FRCP?

Answer 30

A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order. FRCP 26(d)

Question 31

Are the parties permitted to modify the discovery rules?

Answer 31

Yes - procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial. FRCP 29.

Question 32

How many depositions is a party limited to before they must obtain leave of court to take additional depositions?

Answer 32

10 depositions. FRCP 30.

Question 33

Can a party depose someone more than once in a case w/out leave of court?

Answer 33

No. Leave of court required if the deponent has already been deposed in the case. FRCP 30.

Question 34

Once an organization, corporation, etc. receives a deposition notice, what must it do in response?

Answer 34

The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. FRCP 30.

Question 34

In a deposition notice directed to an organization, corporation, etc., does the moving party have to explain which topics will be covered during the deposition?

Answer 34

Yes - The deposition notice "must describe with reasonable particularity the matters for examination." FRCP 30.

Question 34

How much notice and to whom must a party provide before taking a deposition?

Answer 34

"Reasonable" notice must be provided to every other party. FRCP 30.

Question 34

Do the Federal Rules of Evidence apply during a deposition?

Answer 34

Yes - The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. FRCP 30.

Question 34

How must an objection be stated during a deposition?

Answer 34

"concisely in a nonargumentative and nonsuggestive manner." FRCP 30.

Question 35

When can an attorney instruct a deponent not to answer during a deposition?

Answer 35

only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3) (i.e., to terminate or limit the deposition). FRCP 30.

Question 36

How long can a deposition last under the FRCP?

Answer 36

One day of seven hours. FRCP 30.

Question 37

If a party wants to take a deposition that exceeds one day/7 hours, how can it do so?

Answer 37

The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. FRCP 30.

Question 38

When can a court impose sanctions for conduct during a deposition?

Answer 38

The court may impose sanctions on a person who impedes, delays, or frustrates the fair examination of the deponent. FRCP 30.

Question 39

On what grounds can a party move to terminate or limit a deposition?

Answer 39

it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. FRCP 30.

Question 40

Does a deposition proceed if a party moves to terminate or limit it?

Answer 40

No - the deposition must be suspended for the time necessary to obtain an order. FRCP 30.

Question 41

If a party only offers part of a deposition into evidence, what can the opposing party do to present a more complete picture of the deposition testimony?

Answer 41

An adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts. FRCP 32.

Question 42

In what circumstances can a party use the deposition of a witness for any purpose, regardless of whether the witness is a party?

Answer 42

A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness's attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable—in the interest of justice and with due regard to the importance of live testimony in open court—to permit the deposition to be used. FRCP 32.

Question 43

What's the deadline for providing written responses to requests for production of documents?

Answer 43

30 days after being served. FRCP 34.

Question 44

Can the parties stipulate to a shorter or longer time period for responding to RFPs?

Answer 44

Yes. FRCP 34.

Question 45

Does a party have to produce documents at the same time that it provides its written responses to an RFP?

Answer 45

No. The production must be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. FRCP 34.

Question 46

An objection to an RFP must be made with ... and must state whether materials are being .... on the basis of the objection.

Answer 46

*specificity *withheld FRCP 34

Question 47

Unless stipulated or otherwise ordered by the court, a party must produce documents as they are kept ... or must ...

Answer 47

*in the ordinary course of business *organize and label them to correspond to the categories in the request FRCP 34

Question 48

Can RFP's under Rule 34 be served on non-parties?

Answer 48

No - must use a subpoena for non-parties. FRCP 34.

Question 49

What's the deadline to respond to written RFP's that are served before the parties' Rule 26(f) conference?

Answer 49

30 days after the first Rule 26(f) conference. FRCP 34

Question 50

If a party objects to an RFP on the grounds that it's overly broad but the objection recognizes that some part of the request is appropriate, what should the objection say?

Answer 50

The objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such an objection, the statement of what has been withheld can properly identify as matters “withheld” anything beyond the scope of the search specified in the objection. FRCP 34 - comments.

Question 51

Can a Request for Admission be served on a non-party?

Answer 51

No - can only serve RFA's to another party. FRCP 36

Question 52

What's the deadline for answering or objecting to a Request for Admission?

Answer 52

30 days after being served. FRCP 36

Question 53

What happens if a party fails to answer or object to a Request for Admission within 30 days after being served?

Answer 53

The matter is deemed admitted. FRCP 36

Question 54

If a party thinks that the opposing party provided an insufficient answer or objection to a Request for Admission, what can the party do?

Answer 54

The party can file a motion to determine the sufficiency of the answer or objection. FRCP 36.

Question 55

If the court finds that an answer to an RFA fails to comply with FRCP 36, what can the court do?

Answer 55

Order that the matter is admitted or that an amended answer be served. FRCP 36.

Question 56

What's the effect of an admission to an RFA?

Answer 56

The fact is conclusively established for purposes of the action unless the court, on motion, permits the admission to be withdrawn or amended. FRCP 36.

Question 57

In what circumstances can a court permit an admission to an RFA to be withdrawn or amended?

Answer 57

if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. FRCP 36.

Question 58

What must a party do before filing a motion to compel?

Answer 58

The party must in good faith confer or attempt to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. FRCP 37.

Question 59

If a moving party's motion to compel is granted, can the court award attorneys' fees or costs to the moving party?

Answer 59

Yes. If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. FRCP 37.

Question 60

If a motion to compel disclosure or discovery responses is denied, can the non-moving party seek to recover attorneys' fees or costs?

Answer 60

Yes - If the motion is denied, the court must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. FRCP 37.

Question 61

What type of order can the court enter upon denying a motion to compel disclosure or discovery responses?

Answer 61

A protective order. FRCP 37.

Question 62

Can a party be required to pay attorneys' fees/expenses for improperly failing to admit certain facts in response to a Request for Admission?

Answer 62

Yes. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. FRCP 37.

Question 63

What sanctions can a court impose for failing to take reasonable steps to preserve ESI in the anticipation or conduct of litigation?

Answer 63

The court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

Question 64

At trial, must witness testimony be taken in open court?

Answer 64

Yes - unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. FRCP 43.

Question 65

Before a subpoena to produce documents/ESI/etc. is served on a third-party, what must the issuing party do?

Answer 65

Serve notice and a copy of the subpoena on each party. FRCP 45.

Question 66

In what geographic distance can a subpoena command a person to attend a trial, hearing, or deposition?

Answer 66

A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. FRCP 45

Question 67

The party or attorney responsible for issuing or serving a subpoena must ... to avoid...on a person subject to the subpoena.

Answer 67

*take reasonable steps **to avoid imposing undue burden or expense FRCP 45

Question 68

If a person is commanded to produce documents/tangible things/etc. pursuant to a subpoena but does not believe they should be required to do so, what can the person do?

Answer 68

- Serve a written objection before the time specified for compliance in the subpoena or 14 days after the subpoena is served (whichever is earlier). - File a motion to quash the subpoena. FRCP 45

Question 69

If a person objects to a subpoena, what can the party who served the subpoena do?

Answer 69

Move for a court order compelling compliance with the subpoena. FRCP 45.

Question 70

How many peremptory challenges does a party get?

Answer 70

In civil cases, each party is entitled to three peremptory challenges. FRCP 47.

Question 71

How many jurors sit on a civil jury in federal court?

Answer 71

At least six and no more than 12. FRCP 48.

Question 72

In federal court, does a civil jury have to be unanimous?

Answer 72

Yes. FRCP 48.

Question 73

In federal court, can a party ask to poll the jury after a verdict is returned and before the jury is discharged?

Answer 73

Yes. FRCP 48.

Question 74

What happens if a poll of the jury reveals a lack of unanimity or lack of assent by the jury?

Answer 74

The court may direct the jury to deliberate further or may order a new trial. FRCP 48.

Question 75

When can a party move for judgment as a matter of law during a civil trial?

Answer 75

Any time before the case is submitted to the jury. FRCP 50.

Question 76

In what circumstance can the court grant judgment as a matter of law to a party in a jury trial?

Answer 76

The court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. FRCP 50

Question 77

If the court denies a party's motion for judgment as a matter of law during trial, can the party renew the motion after the jury renders its verdict?

Answer 77

Yes - No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—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 under Rule 59. FRCP 50.

Question 78

How must a party object to proposed jury instructions?

Answer 78

on the record, stating distinctly the matter objected to and the grounds for the objection. FRCP 51.

Question 79

What can a party claim as error regarding jury instructions issued by the court?

Answer 79

1. An error in an instruction that was actually given, if the party properly objected; and 2. A failure to give an instruction if the party properly requested it and - unless the court rejected the request in a definitive ruling on the record—also properly objected. FRCP 51.

Question 80

Under the FRCP, can a prevailing party recover its costs?

Answer 80

Yes - costs should be allowed to the prevailing party unless a federal statute, the FRCP, or a court order provides otherwise. FCRP 54.

Question 81

In general, when must a party file a motion for attorneys' fees and nontaxable expenses?

Answer 81

Within 14 days after the entry of judgment. FRCP 54.

Question 82

What's the standard for granting a motion for summary judgment?

Answer 82

The court finds that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FRCP 56.

Question 83

What's the deadline for filing a motion for summary judgment?

Answer 83

Until local rules say otherwise, the moving party may file the motion at any time until 30 days after the close of discovery. FRCP 56.

Question 84

What is the harmless error rule?

Answer 84

Unless justice requires otherwise, a court's error in admitting or excluding evidence is not grounds for vacating the verdict/judgment, granting a new trial, etc. unless it affects a substantial right of the parties. FRCP 61.

Question 85

What's the deadline for making an offer of judgment?

Answer 85

At least 14 days before trial. FRCP 68

Question 86

What's a party's deadline for accepting an offer of judgment?

Answer 86

14 days after being served with the offer. FRCP 68.

Question 87

If a party makes an offer of judgment and it's not accepted within 14 days, can the party make another offer of judgment later?

Answer 87

Yes - an unaccepted offer is considered withdrawn but it does not preclude a later offer. FRCP 68.

Question 88

If a party does not accept an offer of judgment but the judgment that the party subsequently receives is less favorable than the offered amount, what happens?

Answer 88

The offeree must pay the costs incurred after the offer was made. FRCP 68.