Civil Procedure Flashcards
(5 cards)
Work Product
At issue is whether the engineer’s report was conducted in anticipation of litigation, and whether or not receiving the report would cause undue hardship for the contractor. As a general rule, work product is non-discoverable unless the party requesting the information can make a showing that they cannot reasonably obtain
the information in any other way, that not receiving the information would cause an undue hardship on them, and that they would be unduly prejudiced by not receiving the report. Work product is considered any material that is produced in anticipation
of litigation. It can be produced by an attorney or an agent of an attorney. Here, it appears that the customer was not anticipating litigation at the time the report was conducted. Rather, she was just trying to find leverage to avoid compensating the builder. The engineer’s report was completed on June 30, and suit was not filed
until September 10. Furthermore, the engineer was not an agent of the customer’s attorney. It appears that the builder would be prejudiced by not receiving the report because it contains evidence that is helpful to his case, but he may be able to discover the report by sending a request to the engineer. Regardless, it appears
that the report is not work product. Therefore, the court should order the customer to turn over the engineer’s report.
Sanctions for destruction of emails
At issue is whether a builder should be sanctioned for destroying discoverable material when litigation was foreseeable, if the material was destroyed as part of normal business practice. As a general rule, a party will not be sanctioned for destroying material that is otherwise discoverable, if that material is destroyed in due
course and as part of a normal business practice. Nevertheless, parties have an absolute duty, as soon as they anticipate litigation, to save any and all material that is discoverable. Material is discoverable if it is relevant. It is relevant if it could possibly lead to the discovery of admissible evidence.
Factors that the court should consider include whether he was acting in good faith at the time he destroyed the emails, whether he is otherwise cooperating and behaving in good faith, his ill will or malice, whether there is other poor misconduct on the part
of the builder, and whether he truly contemplated litigation at the time of the destruction of the emails.
Rule 24 of FRCP
Rule 24 of the Federal Rules of Civil Procedure governs intervention, the process by which a non-party to an action may join the litigation. Under Rule 24(a) (intervention of right), a person must be permitted to intervene if three conditions are met: (1) the movant “claims an interest relating to the property or transaction that is the subject of the action,” (2) the movant “is so situated that disposition of the action may as a practical matter impair or impede the movant’s ability to protect its interest,” and (3) “existing parties” do not “adequately represent [the movant’s] interest.” FED. R. CIV. P. 24(a). The three requirements for intervention of right are often “very interrelated.”
Temporary Restraining Order
The first type of interim relief the nonprofit could seek to stop the USFS from issuing a logging permit to the logging company is a temporary restraining order (TRO) prohibiting the USFS from issuing the logging permit. A TRO can be issued without notice to the adverse party, but only in limited circumstances and only for a limited time. FED. R. CIV. P. 65(b). To secure a TRO without notice, the nonprofit would need to submit an affidavit containing specific facts that demonstrate a risk of “immediate and irreparable injury” if a permit is issued. FED. R. CIV. P. 65(b)(1). In deciding whether to grant a TRO, courts will also consider the same factors that are relevant in deciding whether to grant a preliminary injunction (e.g. the moving party’s likelihood of success on the merits, the balance of hardships, and the public interest). See Point Two(b), infra. The TRO would last only long enough for the court to consider and resolve a request by the nonprofit for a preliminary injunction, but no longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). In addition, bond is required.
Preliminary Injunction
Because the TRO would be temporary, the nonprofit would need to move for a preliminary injunction to prevent the USFS from issuing a logging permit throughout the pendency of the litigation. Preliminary injunctions are injunctions that seek to “protect [the] plaintiff from irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits.” Rule 65 of the Federal Rules of Civil Procedure sets out the procedural requirements for preliminary injunctions. Preliminary injunctions may be granted only upon notice to the adverse party, FED. R. CIV. P. 65(a)(1), and only if the movant “gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” FED. R. CIV. P. 65(c).
While Rule 65 sets out the procedural requirements for preliminary injunctive relief, it does not specify the substantive grounds upon which it may be granted. The court’s discretion in ruling upon a motion for a preliminary injunction “is exercised in conformity with historic federal equity practice.” 11A WRIGHT ET AL., supra, § 2947, at 114. The court typically considers four factors:
(1) the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted,
(2) the balance between this harm and the injury that granting the injunction would inflict on the defendant,
(3) the probability that the plaintiff will succeed on the merits, and
(4) the public interest.
The most important of these factors is the risk of irreparable harm to the plaintiff. If the plaintiff has an adequate remedy at law (e.g., if money damages can compensate the plaintiff for its loss), then a preliminary injunction will be denied.
