Civil Procedure (Federal)

Question 1

Work Product Doctrine

Answer 1

(1) work product privilege protects materials prepared by a party in anticipation of litigation.

**Materials protected by the attorney client privilege are absolutely privileged from disclosure in discovery.

Question 2

How to Compel Disclosure Against Work Product Doctrine

Answer 2

(1) claimed work product materials contain information which is not reasonably available to him by any other means
(2) his interests would be substantially prejudiced if he were not allowed access to those materials
** may not order disclosure about mental thoughts of attorney

Question 3

Relation Back Standard

Answer 3

An amended complaint filed after the statute of limitations has run “relates back” to the original complaint, and therefore is not time-barred, if:
(1) the original complaint was timely filed; and
(2) the new claims in the amended complaint arise out of the “same transaction or occurrence” as the claims in the original complaint.

Question 4

Claim Preclusion

Answer 4

Res Judicata
(1) valid final judgement on the merits
(2) same parties (or their privies)
(3) same claim (arose from same transaction or occurance)

Question 5

Issue Preclusion

Answer 5

(1) same issue
(2) have been actually fully litigated
(3) have been determined by a valid final judgement on the merits
(4) issue was determined to be essential part of prior judgement

Plaintiffs and defendants can be different, but the party AGAINT whome the issue is to be precluded must have been a party to the action

Question 6

Personal JDX
Traditional Basis

Answer 6

(1) D Consents
(2) Domiciled in Forum State
(3) Present in forum state when served

Question 7

Personal JDX
Constitutional Analysis

Answer 7

(1) Long Arm Statute
(2) Minimum Contacts
(i) purposeful availment
(ii) foreseeability
(3) Relatedness - Specific or General JDX
(i) Claim based on activity in state - Speicifc JDX
(ii) General JDX - Defendant ‘at home”

(4) comport with notions of fair play an justice, court balances - only required to anlayze for specific jdx
(i) interest of D (convenience) - VERY hard to meet, D needs to show coming to state puts her at a severe disadvantage, rarely won by D
(ii) State’s interest
(iii) other interests

Question 8

Diversity JDX- how is citizenship of unicorporated citizens determined?

Answer 8

its the citizen of all the members, including limited and genral partners

Question 9

Alienage JDX

Answer 9

Wil permit diversity JDX where there is a case between (1) US citizen and (2) a foreign subject or citizen

No diversity JDX where both are aliens, unles both parties are U.S. citizens on both sides of controvery

Question 10

Federal Question JDX

Answer 10

Case arises under federal law

Question 11

Cal Subject Matter JDX - classifications

Answer 11

Unlimited Cases - over $25k
Limited cases - under $25k
Small claims court - under $10k if person, $5k if corp

Question 12

Supplemental JDX

Answer 12

Common Nucleus of Operative Facts
Same transaction or occurance
-Make sure to check to see if in diversity JDX, P is not trying to get a claim in that would have evaded diversity
ONLY EXCEPTION to limitation of P evading diversity under supplemental is when there are multiple plaintiffs, 1 plaintiffs claim satisfies the $75k minimum, other plaintiffs, does not, may excecise supplmental over the non $75K p’s claim

Question 13

Aggregation (Diversity JDX)

Answer 13

Claims can be aggregated - all claims of P
Joint tortfeasor defendants - claim can be aggreagte
2 plaintiff with common undivded interest, claim can be aggregated

Counterclaims cannot be aggregated

Question 14

Removal Jurisidiction

Answer 14

(1) Only D’s eligible and D MAY NOT remove if citizen of forum state
(2) Case is removed to federal court embracing state court where originally filed
(3) Must remove no later than 30 days after service of 1st removable document (typically first pleading) but never later than 1 year

Question 15

For Venue Purposes - where does a corporation reside

Answer 15

in all districts where they are subject to perosnla jurisdction if the district were a state, assessed at the time case was filed.

Question 16

Venue is proper where

Answer 16

(1) Claim arose
(2) D resides
(3) anywhere personal JDX may be proper

Question 17

Transfer of Venue

Answer 17

Original Venue Proper - may be transferred where the case could have been filed or parties consent and there is personal JDX, subject matter JDX, and venue

Original Venue Improper - may dismiss or transfer
Forum selection clauses generally upheld.
Forum Non Conveins - may dismiss or stay a case if there is a far more approriate form elsewhere

Question 18

Erie Analysis

Answer 18

Step 1: Is there a FRCP rule? If yes, apply it

Step 2: Must determine if state law is clearly substantive (Conflict of law rules, any laws about SOL, standard for granting a new trial becase jury’s damage award was excessive, laws about elements of claim / defenes)

Step 3: Must do balancing test to see if substnative? Outcome determinative, avoid forum shopping, balance of interests

Question 19

5 Clearly Substantive Laws

Answer 19

• Conflict (or choice) of law rules;
• Elements of a claim or defense;
• Statutes of limitation;
• Rules for tolling statutes of limitations; and
• The standard for granting a new trial because the jury’s damages
  award was excessive or inadequate.

Question 20

Service of Process

Answer 20

(1) Personal Service
(2) Substituted service
(3) Waiver of service if mailed service forms to D
(4) any way in which the P will agree to this

Question 21

Notice vs Fact Pleading

Answer 21

Fed: notice pleed - goal is to provide opposing party with reasonable notice of the nature and scsope fo the claims

CA: Fact pleading / code pleading. Party must pleed ultimate facts to support each element of Cause

Question 22

Complaint requirements

Answer 22

Complaint must
(1) identify parties
(2) statement of claim & SMJ
(3) Demand for judgment
(4) Signature by P or P’s attorney

Question 23

FRCP Rule 11

Answer 23

requires all attorneys or a party representing himself to sign all pleadings, written motions, and papers, certifying that the paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support

Does not apply to discovery

Question 24

Motion To Strike

Answer 24

is aimed at pleadings containing immate rial or redundant issues (e.g., demand for a jury trial when there is no right to

Question 25

Motione for More Definite Statement

Answer 25

used where the complaint is too vague.

Question 26

Relation Back Doctrine

Answer 26

Claims: Same conduct, transaction, or occurrence

Defendants
* Same conduct, transaction, or occurrence
* New party knew of action
* Would have been named

Question 27

Permissive joinder:

Answer 27

Plaintiffs and/or defendants may be joined to an existing case if t
(1) same transaction or occurrence and
(2) raise at least one common question of fact or law.

However, there still must be subject matter jurisdiction.

Question 28

Join Necessary Party

Answer 28

Necessary party is:
◆ No complete relief
◆ Interest harmed
◆ Multiple inconsistent obligations

Join necessary party if
◆ Personal jurisdiction, and
◆ Diversity not destroyed

If can’t join, court may
◆ Dismiss because indispensible, or
◆ Proceed without

Question 29

Impleader

Answer 29

Used to add a third party defendant in order to seek indemnity, subrogation, or contribution

Question 30

Intervention

Answer 30

applies when a nonparty claims an interest in the property or transaction that is the subject of the pending lawsuit and disposition in his absence will impair his rights.

Question 31

Interpleader

Answer 31

Interpleader is an action where one holding property (the stakeholder) forces all potential claimants (people who claim the property) into a single lawsuit to avoid multiple and inconsistent litigation.

There are two types of interpleader:
1. Statutory: Requires only that one claimant must be diverse from one other claimant and the amount in controversy must be $500 or more.

2. Rule 22 interpleader: Requires that the stakeholder must be diverse from every claimant and the amount in controversy must exceed $75,000.

Question 32

Compulsory Counterclaim

Answer 32

Same transaction or occurrence
Supplemental jurisdiction will extend

Question 33

Class Actions Requirements

Answer 33

Numerosity
Commonality
Typicality
Adequacy of Representation

Question 34

Class Actions: Types of Classes

Answer 34

(1) Prejudice: Class treatment is necessary to avoid inconsistent results or persons participating in a fund as individuals from depleting the fund; or
(2) Injunctive or declaratory relief is sought (e.g., employ ment discrimination); or
(3) Questions of law/fact common to the class predominate over questions affecting individuals, and a class action is a superior method to resolve the issues (e.g., damages for a mass tort).

Question 35

Diversity JDX for Class Actions

Answer 35

Named representative must be diverse AND
the $75,000 amount in controversy requirement can be satisfied by any named class representative.

Question 36

Class Action Fairness ACt

Answer 36

relaxes the federal jurisdic tion requirements for some class actions. It applies where there isn’t complete diversity and allows a federal court to hear a class action if the following requirements are met:
(1) Diversity: Any class member is diverse from any defen dant; and
(2) Aggregation: The class claims aggregate to exceed $5 million; and
(3). 100 members: There are at least 100 proposed class members. 2.

Question 37

Mandatory Disclosures - Inital Disclosures

Answer 37

(1) Identifying those likely to have discoverable information about the claim or defense;
(2) Copies or description of tangible evidence such as documents;
(3) A damages computation and supporting documentation;
(4) applicable insurance info.

If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Question 38

3 kinds of mandatory disclosures

Answer 38

(1) Initial discloures
(2) Expert Information
(3) Pretrial witnesses & documents

Question 39

Mandatory Disclosures - Inital Disclosures

Answer 39

Identity of the expert,
The expert’s qualifications, and
The expert’s written report.

Question 40

Courts Requirement to Certify Class

Answer 40

Court Must Certify Class
The rep’s complaint will say “class action.” But a case is not a class action until the court grants the motion to certify it as a class action. The court also must:

*Define the class and the class claims, issues, or defenses; and
* Appoint class counsel, who must fairly and adequately represent the interests of the class.

However the court rules on the certification motion, the losing party can seek review from the court of appeals. It’s discretionary with the court of appeals.

Question 41

Mandatory Disclosures - Expert Disclosures

Answer 41

A a time directed by the court, each party must identify expert witnesses (”EWs”) who may provide testimony at
trial (that is, opinion testimony) and provide certain other disclosures, must include
* Opinions that the EW will express;
* The bases for the opinions;
* The facts used to form the opinions;
* The EW’s qualifications; and
* How much the EW is being paid.

Question 42

Mandatory Disclosures - Pre-trial Disclosures

Answer 42

No later than 30 days before trial, the parties must give detailed information about their trial evidence, including
(1) identity of witnesses who will testify live or by deposition and
(2) documents, ESI, and other things
that they intend to introduce at trial

Question 43

Consulting Expert Disclosure Requirements

Answer 43

Expert was hired to help with preparing a case, but party doesn’t intend to call that expert to testify at trial.

Such an expert is not an EW, but rather a consulting expert.

Facts known and opinions held by consulting experts are generally not discoverable absent “exceptional circumstances.”

Question 44

Failure to Disclose Consequences

Answer 44

Cannot use evidnce in the case unless the failure was justified or harmless.

Question 45

Deposition

Answer 45

An examination of a witness that occurs under oath and is recorded by sound, video, or stenography. Questions can be oral or written but the answers are oral.

Parties can be deposed and nonparties can be deposed by means of a subpoena.

A person may not be deposed twice without court approval.

Fed only allows 10 depositions, and cannot exceed one 7 hour day, unless court order otherwise

Question 46

Interrogatories:

Answer 46

Questions propounded in writing to another party, which must be answered in writing under oath and the responding party must respond within 30 days. Interrogatories may not be asked of nonparties.

Federal rules permit no more than 25 questions, including subparts, unless the court orders otherwise.

Question 47

Requests to inspect and produce

Answer 47

Federal: Any party may request another party, or a nonparty with subpoena, to make available for review and copying documents, electronic copies, or other tangible items, or permit entry onto

Question 48

Electronically Stored Data / Information

Answer 48

Parties must meet to discuss the discovery and preservation of electronically stored data and report back to the court. If such data is not reasonably accessible because of burden and cost, the court may still order production and impose cost-sharing measures.

Parties must take reasonable steps to preserve electronically stored information when litigation is reasonably foreseeable, or be sanctioned.

Question 49

Request for physical or mental examination of a party

Answer 49

May be sought by an opposing party. A party requesting must obtain a court order upon a showing that the physical or mental condition of the party is at issue, and there is good cause for an examination.

Question 50

Sanctions for Discovery Violations

Answer 50

Sanctions: For violations of discovery, sanctions may be imposed including (1) holding a noncomplying party in contempt
(2) striking plead ings
(3) imposing fees
(4) ordering default judgment.

Question 51

Work product doctrine

Answer 51

Work product is material prepared in anticipa tion of litigation and is generally not discoverable unless
(1) substantial need and
(2) inability to obtain the information through other means.

Absolute privilege applies to mental impressions, opinions, conclusions, and legal theories.

Absolute Privilege Applies if generated by a party or attorney or representative of a party

If a party inadvertently produces privileged or protected material, she must notify other party promptly. Other party must return / destroy the material pending a decision by the court to see if there has been a waiver of privilege

Question 52

Voluntary Dismissal

Answer 52

A plaintiff may obtain one voluntary dismissal without prejudice (so it may be relitigated).

The trial court also has discretion to grant a dismissal after an answer or MSJ is filed, unless substantial prejudice to the defendant would occur.

Plaintiff only gets to do a voluntary dismissal once, second voluntary dismissal is considered a judgement with prejudice.

Question 53

Involuntary dismissal:

Answer 53

The court may do this at the defendant’s request, or at the court’s own motion. Such a dismissal is usually with prejudice, so it may not be

Question 54

Deposition of Organization

Answer 54

When the party is suing an organization, she may “notice” a deposition of an organization, describing the facts that she wants to discover in the deposition.

The organization then must designate a person(s) to testify on that matter.

Question 55

Subpoena Duces Tecum

Answer 55

A subpoena duces tecum requires the deponent to bring requested materials with her to the deposition.

Question 56

Notice to Parties; Subpoenas to Nonparties

Answer 56

A party does not need to be served with a subpoena as a notice of deposition is sufficient to compel her appearance.

A nonparty must be served with a subpoena or else she is compelled to attend. If the party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties.

Question 57

Use of Depositions

Answer 57

Subject to the rules of evidence, depositions may be used at trial:
* To impeach the deponent;
* For any purpose if the deponent is an adverse party; or
* For any purpose if the deponent (regardless of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to introduce the evidence.

Question 58

Scope of Discovery

Answer 58

party can discover anything that is relevant to a claim or defense and proportional to the needs of the case

Question 59

Protective Order

Answer 59

If responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense. party can move for a protective order.

The party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.”

Actions the Court Can Take If the court agrees, it can:
* Deny discovery;
* Limit discovery; or
* Permit discovery on specified terms.

Question 60

2 Step Process for When a producing party responds, but not fully

Answer 60

(1) The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion.

(2) If the producing party violates the order compelling her to
answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion.
The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

Question 61

Default Judgement

Answer 61

Occurs when D does not respond to the complaint in time, 21 days after being served

Question 62

Default Judgement (Process)

Answer 62

Step 1: clerk of the court can enter a default judgment if:
* The defendant has made no response at all (that is, she has not
“appeared”);
* The claim itself is for a sum certain in money;
* The plaintiff gives an affidavit (sworn statement) of the sum owed; and
* The defendant is not a minor or incompetent.
If any of these is not true, the plaintiff must apply to the court for the default judgment.

Step 2: Hearing for Default Judgment
The judge will hold a hearing and has discretion whether to enter the judgment.
The defendant is entitled to notice of the hearing if she has appeared in some fashion in the case. Unlike at trial, the plaintiff’s recovery in a hearing for a default judgment is limited to what is pleaded in the complaint.

Question 63

Motions to Set Aside Default or Defaul Judgment

Answer 63

The defendant may move to have the court set aside a default or default judgment by showing
(1) good cause (like excusable neglect)
(2) a viable defense.
Very generally speaking, a trial on the merits of the case is preferred.

Question 64

Standard for Summary Judgment

Answer 64

The party moving for summary judgment must show that:
* There is no genuine dispute on a material fact; and
* She is entitled to judgment as a matter of law.

CAN BE PARTIAL
Can delay to make ruling to allow party to gather evidence

Question 65

Rule 26(f) Conferance

Answer 65

Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.

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

The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (for example, deleted files), etc.

Unless local rule or court order says otherwise, the court enters an order setting cut-offs for joinder, amendment, motions, completion of
discovery, etc. This is a roadmap for how the litigation proceeds up to trial.

Question 66

Pretrial Conferences

Answer 66

The court may hold “pretrial conferences” to oversee the case.

The final pretrial conference determines the issues to be tried and evidence to be proffered at trial.

This is recorded in the pretrial conference order, which supersedes the pleadings.
This order is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc., so that there are no surprises at trial.

Question 67

Demand for Jury Trial (FRCP) Requirements

Answer 67

A party must demand the jury in writing no later than 14 days after
service of the last pleading addressing a jury triable issue. If a party fails to do so, she waives the right to a jury

Question 68

Jury Instruction FRCP

Answer 68

The jury decides facts, but is instructed on the law by the judge. Parties submit proposed jury instructions to the judge. They do this at the close of all evidence (or earlier if the court says so).

Conferences Regarding Jury Instructions May Be Held
The judge may hold an “off the record” conference with the parties to discuss proposed jury instructions. Before final argument and instruction, and on the record, the court informs the parties of
(1) what instructions it will give and
(2) what proposed jury instructions it rejected.

The parties must be allowed to object on the record and out of the jury’s hearing.
This is true even if the party objected during the “off the record” conference.

If objections are not made before the
jury is “charged” (given the instructions), the objection is waived.

A court can revisit that jury instruction only for clear error that affected
a party’s rights.

Question 69

Motion for Relief from Judgement Order

Answer 69

1. Mistake, excusable neglect (including viable defense)
   Reasonable time (never more than one year)
2. Fraud, misrepresentation, or misconduct by opposing party
   Reasonable time (never more than one year)
3. Newly discovered evidence that could not have been dis-covered with due diligence for a new trial motion. The newly dis¬covered facts must have existed at the time of trial
   Reasonable time (never more than one year)
4. Clerical error
   Any time
5. Judgment is void (for example, the court had no SMJ)
   Reasonable time (no maximum)

Question 70

What is JMOL called in CA court

Answer 70

Motion for Directed Verdict

Question 71

Judgment as a matter of law (JMOL)

Answer 71

occurs when one party files a motion after the other side has been heard at trial (so a defendant can usually move twice), contending that reasonable people could not disagree on the result, and asks for a judgment as a matter of law. Essentially this serves to take the case away from the

Question 72

RJMOL

Answer 72

Occurs after the jury has reached a verdict, contending that reasonable people could not disagree on the result, and asks for a judgment as a matter of law. The losing party must have originally filed a JMOL or they cannot later file a RJMOL since it is a renewal of the earlier motion.

The motion must be made within 28 days after entry of judgement

Question 73

Motion for New Trial

Answer 73

Motion for a new trial: After judgment has been entered, the losing party requests a new trial based on errors made at trial.

The motion must be made within 28 days after entry of judgment.

Question 74

Grounds for Granting a new trial

Answer 74

Grounds for a new trial include the following:
(1) Prejudicial error at trial that makes the judgment unfair.
(2) New evidence that could not have been obtained for the original trial through due diligence.
(3) Prejudicial misconduct of a party or attorney or third party or juror.
(4) Judgment is against the weight of the evidence.
(5) Excessive damages or inadequate

Question 75

Exceptions to the final judgment rule:

Answer 75

Despite the rule, the following orders may be appealed before a final judgment:
(1) Injunctions and some interlocutory orders.
(2) Trial court certifies an interlocutory order for appeal.
(3) Collateral orders, such as those regarding procedural issues.
(4) Multiple claims or parties are involved in the case and some issues are pending, but the issue is resolved as to one claim or party and the judge expressly determines that the order as to that party is final.

Question 76

Interlocutory Appeals Act

Answer 76

The Interlocutory Appeals Act allows appeal of a nonfinal order if:
* The district judge certifies that it involves a controlling issue of law;
* As to which there is substantial ground for difference of opinion; and
* The court of appeals agrees to hear it.

Question 77

“Collateral Order” Doctrine

Answer 77

The appellate court has discretion to hear an appeal on an issue if that issue:
* Is distinct from the merits of the case;
* Involves an important legal question; and
* Is essentially unreviewable if parties await a final judgment

Question 78

Standards of Review

Answer 78

1. Matters of law are reviewed de novo, which means the appellate court can substitute its judgment for that of the trial judge.
2. Questions of fact determined by a judge are reviewed using a clearly erroneous standard. Questions of fact determined by a jury are reviewed using the even more deferential standard of viewing the finding of fact in a light most favorable to affirming the jury’s verdict, and determining whether a reasonable jury could have reached the same conclusion.
3. Mixed questions of fact and law are reviewed de novo,
4. Matters discretionary to the judge are reviewed using an abuse of discretion standard, which means such matters will only be over turned if clearly wrong.