Amended and Supplemental PleadingsFRCP 15 – 12 O.S. §2015

Amending the Pleading:15(a)a) Can amend once any time before responsive pleading is served orb) If pleading does not require responsible pleading, and action is not on trial

calendar yet, then anytime within 20 days after pleading was served.c) Otherwise need leave of court and consent of other party (leave shall be freely

given when justice so requires). 15(b)

Swank recommends that you always check with other party first, and include a copy of the proposed amendment with motion.

Responding to amended pleading: Within time remaining for response to original pleading or within 10 days after

service of amended pleading, whichever is longer (unless court says otherwise)

15(b)Amendments to conform to evidence: If issues not in the pleadings come up and are not objected to at trial, the court will treat the issues as if they had been raised in the pleading. Implied consent. If the other party does object, the court may grant leave to amend when amendment will allow the party to fully try case on its merits. Party opposing may argue that amendment will prejudice them, and the court may give the objecting party time to gather evidence of why the other party shouldn’t amend. Court may look to see if party is acting in bad faith, or if amending will prejudice the other side or cause undue delay.

Beeck v. Aquaslide. (burden is on the party opposing the amendment to show prejudice)Def. didn’t know that the slide wasn’t its product, so it admitted manufacture. Once they found out, it requested leave to amend and got it.

Swank recommends always amending the pleading afterwards (actually amending), so that you have a clean judgment.

15(c)Relation Back of Amendments. If an amendment is made before the statute of limitations, there’s no problem. But if the SOL has run, and want to add allegations or parties, need to make sure the amendment relates back to the original: if a claim or defense arises out of original conduct, transaction, or event from original pleading, the court will allow the amendment to relate back to the date of the original pleading. Relation-back doctrine is a saving doctrine that permits mistaken parties to be changed or added to the litigation. Also prevents plaintiff from having to initiate separate lawsuits. If the amendment changes the parties of the lawsuit, can do so if the following requirements are met. Primary concern is notice, satisfaction of due process. Can’t use as catch-all to defeat the SOL.

Marsh v. Coleman

Four Requirements of FRCP 15 Amendment of parties.1) allegations in the amended pleading arose out of the same conduct,

transaction, or occurrence set forth in the original pleading (or was attempted to be set forth in the original pleading.) Don’t think you can add a new cause of action.

2) The other party has received notice of action and won’t be prejudiced in maintaining a defense on the merits. (Jurisdictions split over whether have to serve or whether learn informally)

3) The other party knew or should have known that, but for a mistake concerning the identity of the proper party, the action would not have been brought against the party.

4) 2 & 3 must be met within this period provided by Rule 4 for service of process. (120 days for federal, 180 for Oklahoma—use whichever is more forgiving)

Relation Back and Erie Analysis: 1. Federal courts disagree whether 15(c) is substantive or procedural for Erie.2. Erie analysis is still necessary to determine which s/l should apply. The relation back determination would follow from that decision.

Supplementing the Pleading:15(d)

1) Supplemental pleading introduces facts that have occurred after the filing of the original pleading.

2) Party can move to supplement pleading even if original pleading was defective; supplement must still relate back to original. Can’t add new cause of action.

3) A party must seek permission to the court to serve supplemental pleadings; court will grant “upon just terms.” Must provide other party with reasonable notice. Should probably serve

Signing of Pleadings, Representations to Court; SanctionsFRCP 11 – 12 O.S. 2011

Doesn’t apply to discovery!

(a) Signature: All pleadings, motions and other papers must be signed by attorney or party, if not represented; if not signed, can be stricken. In Oklahoma, need bar number too.

(b) Representations to court: Signature certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, –

(1) Info is not being presented for any improper purpose, e.g., not harassing or delaying or needlessly increasing cost

(2) Claims, defenses and contentions are warranted under existing law or by non-frivolous argument extension of existing law or establishment of a new law

Objective standard, good faith standard no longer a defense. Attorneys should not be sanctioned if they can show good faith and research yielding some support for attorney’s legal position

(3) Allegations have evidentiary support or are reasonably likely to have evidentiary support after further discovery

(4) Denials are warranted on evidence or reasonably based on lack of information or belief

(c) Sanctions: If after notice and a chance to fix, a party still violates part (b), the court may sanction attorneys, law firms or parties who violated.

(1) How initiated: Made by motion of party or on court’s own initiative. Swank says to confer with other side first. After confer, then make motion saying that you can’t work it out. Other party gets 21 days (after service of motion) to fix. Safe Harbor provision. Law firm jointly liable for attorneys’ conduct.

(2) Purpose of sanction: to deter repetition of sanctioned conduct. Sanctions can be non-monetary (dismissal, no permission to admit evidence) or monetary in nature. (Won’t hold party monetarily liable for the lawyer making bad legal argument).

(3) Previously, courts were allowed to sanction. Now they are required to sanction.

Attorneys also bound by model rules of professional conduct. Oklahoma kicked out word “material.” And also 28 USC §1927, applies to proceedings in federal court, can be applied (unlike Rule 11) to oral misconduct. Applies only to attorneys. Finally, courts have inherent power to sanction bad faith conduct by litigants or counsel.

RECAP:

Reasonable Inquiry Standard: A pleader certifies that the allegations in the complaint were formed after “an inquiry reasonable under the circumstances.” In addition, the pleader certifies that, to the person’s best information, and belief

“Reasonable” depends on surrounding circumstances including 1) how much time for investigation was available to the signer,2) whether she had to rely on a client for facts underlying the pleading; 3) whether she depended on forwarding counsel or another member of

the bar.”

Who may be sanctioned: A party, lawyer, or law firm may be sanctioned for violations of Rule 11. A party who signs a court paper may be independently subject to Rule 11 sanctions. Absent unusual circumstances, a law firm will be deemed responsible when one of its lawyers has violated Rule 11. For discovery, use Rule 37.

Who may seek Rule 11 Sanctions: Any person, party, or the court on its own initiative, may seek Rule 11 sanctions. Sua sponte sanctions appropriate in situations akin to contempt of court. 28 USC §1927

Hadges v. Yonkers Racing CorpDistrict Court granted YRC’s motion for sanctions against Hadges and his attorney. YRC didn’t serve on Hadges and didn’t allow Hadges the safe harbor to fix the document. Seemed to be personal motivation of judge. Judge abused his discretion by sanctioning, and not noting the evidentiary basis in the record to support Hadges’ allegations. Those facing sanctions need notice and opportunity to respond.

Difference between Rule 11 and 12(b)(6) motions? Rule 11 looks behind allegations of complaint to see whether there is basis for suit. Latter merely addresses adequacy of allegations. For purposes of 12(b)(6) motion, allegations are deemed to be true.

DISCOVERY

3 Purposes of Discovery1) Preserve relevant evidence or testimony that might not otherwise be available

at trial.2) Provide mechanism to narrow issues in dispute between parties; and3) Permit parties to acquire greater information about their own and the opposing

party’s case.

Allows case to be heard on merits, avoid surprises. Learn what other side has for evidence for its claims/defenses, also allows parties to acquire info to strengthen own case. Results in disputes that are settled more quickly, more fairly. Lack of surprise, though, can lead to manipulation of information. Policy concerns today are about the expense and time needed for discovery. Can be used as a weapon.

Scope/Limits of Discovery1) In General: Relevant to the claim or defense of any party; information does not

need to be admissible if reasonably calculated to lead to discovery of admissible evidence

2) Limitations: Can prevent discovery that is: unreasonably duplicative or obtainable from a more convenient, less burdensome, or less expensive source. Information sought must be clearly irrelevant (Roesburg). If object, need to do so with specificity.

3) Privileged material off limits.

Normally, discovery orders aren’t appealable, but could use certified interlocutory appeal or a writ of prohibition.

Required Initial Disclosures (Fed only; not in Okla)

FRCP 2626(a) Requires each party to disclose to other parties certain info without a specific request.

1) Contact info of individuals likely to have discoverable information

2) Copy (or description by category and location) of documents, data, and tangible things that the disclosing party may use to support its claims or defenses

3) Computation of damages4) Copy of insurance agreement

Initial ConferencesParties generally may not seek discovery from any source before they have met and conferred as required by Rule 26(f)

1. Per 26(f) Attorneys of record + unrepresented parties must meet/disclose at least 14 days prior to a scheduling conference with a federal district judge magistrate. At this meeting, parties must in good faith:

a) discuss claims and defenses and possible settlement.b) Arrange for informal exchange of information required under 26(a)(1).c) Develop a proposed formal discovery plan.

2. Within 10 days after this meeting, the parties must submit to the court a written report of the meetings results.

Not party at time of conference, have 30 days from service or joinder.Initial disclosure 14 days before pretrial conf, then at conf, share a,b,c. Must continue to disclose.

DepositionsFRCP 30, 31Witness under oath, answers questions. Oral and written, discovery and trial. Trial deposition used in lieu of having someone testify at court (expert witness @ $2,000/day + expenses; depose them rather than call them to the stand). Anyone with discoverable information can be deposed. If want to depose someone within a corporation, but don’t know who, name the corporation as deponent, state what you want to question about, and they must specify name. Can use this procedure or can ask for person by name (if whistleblower, corp would never voluntarily name them).

Oral and Written:

Method: Stenograph, sound, sound and video (depends on purpose of deposition and cost), also telephone. In OK, parties must agree or get court order if not done by stenograph. Limited to one day of seven hours (Oklahoma is eight hours?)

Witness, lawyers, and court officer present. Get an idea of how witness will testify.

Can be expensive—court officer’s time, stenographer, witness, etc. If want to record by other means, get court’s permission and/or agree with other party on method.

Limits on the number of depositions. Up to 10 depositions per side without the court’s permission. A party also must obtain the court’s approval to depose a person who already has been deposed in the litigation.

Location: Federal: no limitation on where but can file a protective order under FRCP 45—if subject party to undue burden. If nonparty, if location is more than 100 miles from home, can object. Lawyer may argue that there’s no other way, and court may compel.Oklahoma: for party, county where action pending or where party is located when served, residence or adjoining county. For a nonparty, location is county where served or county of residence (or adjoining). Same for document discovery under FRCP 34.

Notice to parties, subpoena non-partiesAs officer of court can sign subpoena yourself, clerk to do.

Non-parties need not be subpoenaed, but if don’t use subpoena and witness doesn’t show up, then noticing party bears all costs. Swank recommends calling other attorney up, ask nicely to arrange, and then send a subpoena along with confirming letter. In Okla, 5 days notice is reasonable. Rule 30 allows subpoena to compel witness. If the non-party doesn’t show up after motion to compel, the court may cite the non-appearing person for contempt. In fed court and don’t show up, file motion for sanction. In OK, confer with other side, put that you’ve conferred in your motion to compel or sanction.

If they show up but don’t answer, consult other side. File motion to compel or sanction (if a party to action, go to court where action is pending; in nonparty, go to court in district where discovery being taken. In OK, can go to either court)

If want party to bring documents with them, when send subpoena or notice of deposition, specify materials and comply with Rule 34. If person isn’t a party, use a subpoena duces tecum. OK: no limit on depositions

Careful on written deposition vs interrogatory.

Depositions on Written QuestionsFRCP 31

No attorneys present. Deposing attorney sends questions to court officer who asks them aloud to witness. The answers are then recorded. Less costly, particularly if party distant, but not able to formulate follow-up questions, watch body language, etc. No limit to number of questions.

Depositions, GenerallyIf witness is near death and you want testimony, but the other side’s going to wait to file the action until after the person dies, can file a motion to perpetuate testimony.

Interrogatories FRCP 33

Written request for information served on parties to the lawsuit; can’t use for non-parties. Similar limitations as depositions on written interrogatories. Attorneys for other side can review, no ability to ask follow-up questions, or watch initial reaction of witness.

No court permission required; just “serve” other party.

In OK, can send interrogatories with petition (max 30); in federal court, must wait until discovery begins (max 25).

Parties limited to 25 interrogatories without court permission or written stipulation. Includes discrete subparts. Main benefit is that party can be asked for information not known but which is at its disposal. (e.g. organizational information.) Can ask opinions; an interrogatory is not necessarily objectionable merely because an answer involves an opinion or contention that relates to fact or the application of law to fact. Generally not admissible as evidence at trial, but help form case.

Interrogatories are usually the first wave of discovery because can ask about a broad range of information. Also one reason why they’re contentious—can ask for party’s opinion, can ask them to research. Often have definition section at the beginning.

In OK and fed, when answer interrogatory, write out question and then the answer.

If object to questions, can file an objection or motion for a protective order (under FRCP 26)Grounds must be stated with specificity; if not stated, waived.If party doesn’t respond, follow FRCP 37d; talk to other side. If don’t respond at all, motion for sanction; if respond only partially, motion to compel. 37d not in OK rules.

Rule 33(d)Party may produce business records instead of answering if:

1) burden of ascertaining information (from records) substantially same for both parties.

2) Party providing the records specifies location in sufficient detail to allow either party to just as easily locate and identify (can’t dump 10,000 documents without any direction)

Sometimes court will add that it needs to be expensive or burdensome for other side.

Can object to interrogatories; must state objection with specificity. Must object in timely fashion, otherwise waived.

Production of DocumentsFRCP 34

Any party may serve on any other party a request to inspect and copy any designated documents, or to inspect, test, or sample any tangible things within the scope of FRCP

26. The request shall describe (item or category) with particularity. Shall specify a reasonable time, place and manner to inspect. Party on whom the request is served shall respond in writing within 30 days after service of the request. Response shall permit or object to request.

A person not party may be compelled under FRCP 45. OK has different rule for nonparty 12 O.S. 2004.1

One difficult aspect is determining if document is under someone’s control or custody. Same motions to compel or sanction

Physical & Mental Examination of PeopleFRCP 35

If mental or physical condition of party is in controversy, court may order person to submit to examination. 1. Order made only on motion for good cause and with notice. 2. Must show that condition is in controversy (if party is alleging something w/r/t injury). Examination is within the discretion of the court. Good cause=no other way to discover except by examinationIf witness, can depose and ask or use document request (can only examine party). Ways around medical discovery rules.

OK: Where center of controversy AND party has relied on injury as a part of claim or defense, can examine. If want to object, you have burden. If condition or injury not relied on, then same as federal court.

Cannot use contempt of court as sanction for medical request. Must be licensed or certified examiner. You want someone who will make a good witness. Example: chiropractor vs. neurologistExam must occur within 5 days of notice.Can have repeat exam under case law if you think condition has changed. Can take person with you to exam. Other statutes: 76 O.S. 19: if have client that was a patient of hospital, entitled to get records. 20 If hospital doesn’t provide former patient with records, it’s a misdemeanor. 26 O.S. 19: If sue your doctor, waive dr-patient privilege. OTHER WAYS TO GET INFO WITHOUT REQUESTING REPORT FROM EXAMINING63 O.S. 939: State medical exam office can get records by filing a motion; must show good cause. Cannot get hospital’s records on morbidity/mortality. If paternity issue comes up, court can order genetic testing.

FED: If examined party requests a copy of report, waives any privilege. OK: if rely on physical/mental/emotional condition as a claim or defense, waive dr-patient privilege. But under Federal Rules of Evidence 501 say that follow state law. 12 O.S.3235c—says can examine agent, employee; constitutionality questionable. Should add as party, examine, then drop.

Requests for AdmissionFRCP 36

A party may serve a request for admission on other party. Must respond within 30 days, otherwise item is considered admitted. Can object, move for protective order, or ask for more time.

Rule 36 really isn't discovery device, but can be used as such. Can use it to limit issues. Not signed under oath. Can withdraw admission, with court permission. No limit on admissions, but Rule 36b says local court can limit. In OK, in practice, western district allows 25. Once in, admission is conclusive evidence--unless court allows you to withdraw. Can ask admission about facts and matters of law. Have to make reasonable inquiry when given request for admission. If deny something proven later to be true, have to pay court costs. Admission is only used for pending litigation. Can't take admission for Case A, and use for B. A party may serve on another party a written request to admit the truth of certain matters of fact, or the application of law to fact, or the genuineness of a document or other evidence.

1. Status as a discovery device: requests for admissions are the least frequently used discovery technique. In a technical sense, this is not a discovery device at all, because it does not seek to discover new information. Instead it narrows issues for trial.

2. Purpose: trial expedition: the major purpose of admissions is that such statements help to expedite trial by eliminating uncontested facts from proof at trial. Admitted facts need not be proved at trial and therefore the lawyer does not have to adduce evidence in support of the admitted facts. 36(b). Unlike other discovery responses, a responding party cannot contradict an admission at trial or explain it away.

Failure to Make Disclosure or CooperateFRCP 37

A party may request the court to compel disclosure. After motion to compel, party may move for sanctions. If motion to compel is granted, court may order payment of attorney’s fees of other side to get information. Supplementing responses: FRCP 26e requires updating/supplementing disclosures. E2 requires correction. Doesn't apply to depositions, with the exception of expert witnesses. When send out interrogatories and/or admission request, most lawyers include intro section that says duty to supplement. In Fed court, if don't comply, FRCP37c1, subject to sanctions. No similar provision in OK. OK has different language, but substantively the same. O.S. 3226Same is true w/r/t deposition (not req'd to supplement) and interrogatories. Condition that info is not otherwise known to party. Court can order supplementation. Local federal rules require supplementation too.

Roesburg v. Johns-Manville Corp.Laborers handling asbestos. Filed 56 interrogatories. Basis for GAF's objections--too broad a time frame, vague, burdensome, oppressive, and not calculated to result in helpful info. This is standard objection. Basis of argument, Rule 26b1. Relevant to claim vs. Relevant to subject matter. Goal of this phrase was to limit discovery. Also Rule 33b. GAF's problem was that their objections weren't specific. Court seemed to think they were stonewalling. Also might use 26c, 26b2 (limitations) 33b4, 37. Consider these, esp 26b1.

OK--text is same as old federal rules. Relevant to subject matter--don't need to show good cause. Also don't have limitation section. Protective order section diff. Discovery in Oklahoma might be more broad. Defendant must show how each interrogatory is not relevant or is overly broad or burdensome or oppressive.

Does discovery info have to be admissible? No. 26b1--doesn't matter, as long as it's reasonably calculated to lead to the discovery of admissible evidence. First objection? Too many questions. 25 is limit today--they gave 56. Can ask any number, but need to go to court first and ask permission. May need to present them to court so that court could evaluate whether they're relevant. Can ask for facts or opinion or application of law to fact. Can ask whether they have documents related? Yes. Can you ask them to attach? No. interrogatories different from document requests.

Don’t have to supplement depostitions, but do on interrogatories 26e.

Relation to Rules of EvidenceInfo may be discoverable but not admissible; it just needs to be reasonably calculated to lead to the discovery of admissible evidence. FRCP 26b1. E.g. Hearsay not admissible at trial, but okay at deposition--might lead us to discoverable evidence.

Privileged MaterialFRCP 26b1 permits discovery of material that isn't privileged, but “privileged material” refers to a narrow category of information. Some difference in common law and statutory. FRE 501. Federal question: use federal common law vs. Diversity, use state. different types of privileges. Look at p. 308 in O’Connor.

Attorney-Client PrivilegeUnderlying facts are not privileged. Policy supports the privilege to facilitate full disclosure to achieve justice. Fact finding and justice conflicts with policy that people are entitled to legal representation. Material protected is confidential communication between client and attorney made for purpose of facilitating legal services. Fed common law: about the same as OK. Holder of privilege is client or someone wanting to be a client; must disclose while attorney in professional capacity for purposes of securing services or getting legal opinion. Communication conveyed to attorney or subordinate by client or client’s

representative. If a stranger is present, the privilege is waived. If they’re going to commit a crime, must disclose.

What if client is corporation? Two tests. Control group test (Okla): information conveyed by upper level employees who could ask for and then act on legal advice. If lawyer talked to other employees to render advice, in Okla., that may not be privileged.

Subject Matter Test: Where communication needed to provide legal advice, concerns matters within the scope of the employee’s duties, and was treated as confidential within corporation.

Side Issue: If you represent corporation, who do you represent? Corporation=shareholders. Corporation may waive privilege, even over objection of employees.

Claiming Privilege; WaiverMust expressly claim privilege (and with specificity) under FRCP 26b5. Object or file motion for protective order under 26c. If fail to properly claim privilege, court may view as a waiver. What if give tons of documents and the smoking gun is in there. Is that a waiver? Some courts say even inadvertent disclosure is waiver, others will look at factors: reasonableness of efforts to prevent disclosure. Was there some delay in reporting? How big a piece of claim is this. Bottom line: be careful! Most attorneys today, will include a form that says (if there's significant discovery) no waiver if inadvertent disclosure--cannot be used at trial, must be returned.Coca-Cola case: Swank doesn't believe that formula is privileged, confidential maybe. Dalkon Shield shows how process can be abused. "Chill" effect by threatening disclosure of highly confidential/embarrassing material.

Trial Preparation Materials

Hickman v. TaylorWhere attorney wanted all material (memos, witnesses statements, notes from conversations with witnesses) from other side. This is not attorney-client privilege because doesn’t deal with information from client. It was all the materials relating from one attorney’s work in preparation for trial. (This case came before subject matter test set out by S. Ct. in Upjohn.)

Trial preparation rule isn’t absolute. Must show that can't get information by other means—show necessity, hardship, prejudice or injustice. Under 26, must show substantial need and undue hardship. Here, witnesses still available, government had taken statements that were likely available. If witnesses no longer available, dead or hostile.

Reason for Rule: Prevent one side from taking advantage of the other side's investment and preparation. Parasitism. If want to compare stories and witnesses are friendly, witness can ask other attorney for copy of statement. Most courts say that material prepared for any litigation is protected, as long as done by or for party to

subsequent litigation.

Rule protects information gathered by subordinates of attorney (in OK, insurer not included). But must be done in ANTICIPATION OF LITIGATION. If done in ordinary course of business, or to fulfill public/government requirements unrelated to litigation, discoverable.

Holmgren v. State FarmParty seeking opinion work product must make showing beyond the substantial need/undue hardship test required under FRCP 26b3. May be discovered when mental impressions, opinion are at issue and the need is compelling.

Expert Information1. Four Categories (a and b from FRCP 26b4 and advisory committee notes)

a. Employed for trial - must discloseb. Employed but won't testify

1) informally retained - don't have to disclose. 2) formally retained - may discover under exceptional circumstances

c. Employed in the ordinary course of business - treat like witnessd. Actor or viewer that happen to be experts - treat like witness

Ager v. Stormant Hospital.: status should be determined on ad hoc basis. Determination of status rests on party resisting discovery. Consider:

1) Manner in which the consultation was initiated2) Nature, type and extent of information or material provided to or

determined by the expert in connection with her review3) Duration and intensity of consultative relationship4) Terms of the consultation, (payment, confidentiality of test data or

opinions)Must show exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means (specialized machinery destroyed or number of experts in a field is small). Rule to combat parasitism.

OK: no provision that you must include experts’ report. W/r/t nontestifying experts, OK=Fed.Lookk at Rule 45 w/r/t independent experts

Testifying experts(a) Identity of testifying experts(b) Written report of testimony (opinions, basis for them, data, exhibits to

be used, qualifications, list of publications in past 10 years, compensation to be paid, listing of other cases where testified in last 4 years

(c) Made at least 90 days before trial, unless pretrial order otherwise specifies, unless expert will solely contradict or rebut opposing expert – then within 30 days after other party’s disclosure

SanctionsWA State Physicians v. Fisons Corp.Doctor against a drug company for injuries to him and a patient to whom the doctor prescribed a Fisons drug. Fisons had failed to produce a memo that would have been under one of the plaintiff’s discovery request.

Court did recognize that fair and reasonable resistance to discovery is not sanctionable. Problem was that they were misleading. Fisons said they were just vigorously representing their client. Conflict of lawyers duty to client and as officer of the court. Under 26g, language is "shall" sanction. No discretion.

Who shall be sanctioned under 26g? Parties and attorneys, or both. Purpose of sanctions? Deterrence of offenders and those who might think about, compensate (parties who spent attorneys fees to fight) and educate. Specific and general deterrence. Don't want cottage industry of sanctions. To punish those who violate--can dismiss case. Level of sanctions? Least severe that will be adequate to meet goals. Doesn't require bad faith, just a failure to comply. At one point, Rule 37 has language about "refusal" So some courts thought intent was required.

Oklahoma 3226g vs. Fed ruleDon't have initial discovery in okl, so more like 26g2. In 3226g1, have to the best of his knowledge/belief. Interposed in good faith - Subjective or objective standard? Argue both ways. OK left out term harass or increasing cost of litigation, but do say "for any other improper purpose." Differences aren't too significant. Both say SHALL impose.

When more specific rule that applies, inherent power of court is inappropriate. Nor do Rules 11 or 37 apply. Can’t use contempt of court for medical. Normally uder 26g, use expenses that used and attorney fees. Court has previously required attorneys to write bar articles about why their motions were inappropriate. Under 26g, no motion to compel is required.If you have to make a motion to compel, can get costs. But 37b2 is where most sanctions are. Can prohibit party from introducing evidence, contempt (not in medical discovery), in lieu or in addition to orders, can order expenses paid. 26g doesn't have same changes as rule 11. Monetary penalties will go to court fund. Can impose sanctions after case is over. Both with 26g and 37. After case is over, primarily expenses and fees. Chambers v. Nasco--court imposed fees on its inherent power. $1mNote 10-motion to compel, or 26g

Holmgren v. State Farm, Part IIWhat discovery device used? Admissions. Rule 36. If they can get state farm to admit facts, they're essentially admitting liability. Then only question is damages. What rule was used to impose sanctions? Rule 37c--used this because it is appropriate for this specific situation. Only partially responded. Can get reasonable expenses including attorneys’ fees. No provision for monetary fine. Can recover whatever expenses incurred to find out info that should have admitted. Note 6-if public info available, makes state farm's failure to comply less egregious. Because plaintiff wouldn't have had difficulty proving facts. Costs awarded would be

less.How do we get discovery dispute to the court? Meet with other side first, but beyond that? Motion to compel or a protective order (26c) or object to request--depending on which side you're on. Motion to compel is by discovering party.When use motion to compel? Where there has been some type of partial compliance, usually. What other route, depending on circumstances. If a total noncompliance, motion for sanctions.If can use 26g, go straight to sanctions. If one party had good faith belief that jury could find in their favor, judge won't impose sanctions on party for failing to admit at beginning (matt's question).

TimingDiscovery can begin after filing claim; can require discovery conference. Each court has own rules.Federal- discovery cannot begin until Several status conferences before trial, then final pre-trial conference, then final pre-trial order. Get this from Eric!!

Adjudication With and Without a Jury

. The Right to Trial by JuryA. Sources of the Right

1. Federal: 6th, 7th Amendmenta. You must request jury no later than 10 days after complaint/answer (Rule

38)b. Look at 1791 to decide which issues are equity and which are lawc. if 6th amdmt applies to states, then 6-person jury okay in civil cases

2. Oklahoma: Article 2, § 19a. Right is inviolate. You automatically have it, must waive itb. Equitable Clean Up Doctrine: If equity has jurisdiction because

predominating issues are equitable, even if there are incidental legal issues, equity court tries all issues. This means no jury, just judge trial. Look at date of our constitution to see which issues are equity and which are law.

c. In civil litigation, if the matter concerns over $10,000, there is a 12 -person jury. If the matter concerns less than $10,000, there is a 6-person jury.

3. “Actions at Common Law” and the Historical Requesta. Chauffeurs Local, 391 v. Terry:

Truck drivers suing union under federal statute, wanted jury. Union opposed. The truck drivers' action against the union encompassed both equitable and legal issues. Court analyzed by looking at issue to be tried, not the character of the whole action. Then, examined 1) statute; 2) issues to be tried in comparison with 18th-century actions brought in the courts of England before law and equity merged, 3) remedies to

determine whether they are legal or equitable in nature. The remedy of back pay is legal in nature and the money damages are a type of relief traditionally awarded by courts of law, so jury trial.

b. Brennan: Look at relief sought only. Don't need to look at historic test for type of action it would have been at common law. Can't expect district judges to apply convoluted historic test. In 99.9% of cases, this isn't issue. Kennedy: stick with historic test.

4. Ross v. Bernhard: If the underlying issue involved in a case is legal (damages) then the litigant is entitled to a jury trial on the legal issue. Usually stockholder's derivative action is equity, but stockholders are suing for damages on behalf of corporation. If corporation sued its directors or third parties on legal issues, it would have jury trial. FN10: The legal nature of an issue is determined by considering:

1) the pre-merger custom with reference to such questions2) the remedy sought (most important)3) the practical abilities and limitations of juries (S. Ct. rejects this later)

5. Dairy Queen v. Wood: Constitutional right to trial by jury cannot rely on the plaintiff’s or defendant’s choice of words used in the pleadings. There is a right to a jury on legal issues even if the equitable claims predominate or the legal issues are incidental to the equitable ones.

6. Tull v. United States: Clean Water Act case resulting in the Tull Test:1) Examine the nature of action before merger (1789)2) Examine the remedy sought (most important)The Court held that in actions under federal statutes providing for civil penalties, an alleged violator is entitle to a jury trial to determine whether a violation has occurred and civil penalty is appropriate. On the other hand, the judge may assess the amount of the penalty, consistent with congressional intent that a judge perform the function.

7. Equity Actions:a. Specific Performanceb. Injunctionc. Reform or Rescind a Contractd. Enforce a Truste. Ask for Accountingf. Enforce a Lieng. Quiet Title

8. Law Actionsa. Breach of Contractb. Damages Suitsc. Tort Suitsd. Ejectment of Titlee. Replevin

f. Forcible Entry/Detainer

B. Complications of Merger and the Federal Rules: Beacon Theatres1. Beacon Theatres, Inc. v. Westover:

a. Federal Rules merged courts of law and equity, but also permit parties to join legal and equitable claims in a single suit. Legal claim goes first.

b. A jury trial is required even if a legal issue is raised by the defendant's answer, as through assertion of a legal counterclaim.

c. The trial court must use its discretion but only in the most imperative case should it deny a right to a jury trial.

d. If you try the legal issue first, by jury, then the judge can decide whether to issue the equity issue (injunction) depending on the jury's finding.

e. When Congress creates a new right of action it may expressly or impliedly create a right to a jury trial

2. Lessons from Dairy Queen and Beacon Theatresa. Right to jury trial on legal issue can’t be voided by saying legal issue

incidental to equitable issue. b. Can’t change name of legal remedy and avoid trial by jury.c. Order of trial must be arranged so that facts common to both presented to

jury first and then the equitable matter decided by judge. d. These two decisions cut out heart of the “equitable clean up” doctrine

in Federal court. Still use in OK: once equity gets the case, tries all issues. If equity has jurisdiction because predominating issues are equitable, even if there are incidental legal issues, equity court tries all issues. This means no jury, just judge trial. ????????????????????????????????????????

C. Juries in non-Article III Courts1. Atlas Roofing v. OSHA: Whether Congress can create a new cause of

action in the government for civil penalties enforceable in an administrative agency where there is no jury trial. Where litigating public rights, (where gov’t sues in its sovereign capacity to enforce public rights created by statute) congress can assign the factfinding and adjudication to an administrative forum without a jury. (Doesn’t violate 7th

Amendment)2. Granfinanciera v. Nordberg: Actions involving Private Rights: If

Congress does not create a new right of action involving public rights, and simply re-classifies a pre-existing common law cause of action implicating private rights, then a litigant is entitled to a jury trial.

D. Jury Trial in State Courtsa. 7th Amendment is not binding upon the states—never incorporated.b. Some states have a right to jury trial in all issues, legal and equitable.

Others allow only for matters of law. States may grant jury trial where federal system would not. If federal statute grants jury in FQ case, have jury as if tried at federal level. FEDERAL AND STATE CONFLICT ON

THE RIGHT TO JURY TRIAL, USE FEDERAL RIGHT (Byrd v. Blue Ridge Rural Electric Coop. Inc.)

II. Selection and Size of the Jury

A. Venire and Voir DireLooking for reasonable cross-section of the population. Jurors summoned are called the venire, selected by a process called by voir dire, which gathers information about prospective jurors’ knowledge, bias, or opinions. Judge may strike a juror for cause or a lawyer may use one of her peremptory challenges. 28 U.S.C. §1861 – litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community.

1. May be struck for cause when they have a close connection with any of the parties or witnesses, or “when they have such fixed opinions that they couldn’t judge impartially.”

2. Different courts conduct voir dire in different ways—conducted by judge, lawyers, both. Questioned as a group or individually. Rule 47(a) – Either party can examine a potential juror or the court may, if the court decides to, either party may supplement the examination as deemed proper. In OK, if want specific questions asked, provide to judge prior to voir dire.

B. Peremptory ChallengesMust be able to read, speak English, not be convicted of felony, other stuff p.

913Can challenge entire panel for selection process. Can pull off voter registration, 1. Either party may challenge a jury for cause, to seek to convince the judge

that the juror is not qualified to serve. Judges are reluctant to discharge except for relatives and employees of parties. 12 o.s. 572. No limit on challenges for cause. a. Peremptory Challenges – This allows lawyers to strike a juror for any or

no reason (subject to limitation in J.E.B. v. Alabama).b. 28 U.S.C. §1870 – in federal civil trials, each party gets 3 challenges.

Federal court may allow more under 28 usc §1870. In non-capital felony, prosecution gets 6, defense 10. In capital cases, both allowed 20.

c. Justifications in favor of challenges:i. Gov’t seen as having great advantage; provides some leverage to

defense.ii. Legitimizes verdictsiii. Supplement challenges for cause, allowing lawyers to strike potential

jurors without asking a lot of time-consuming questions; if conduct voir dire in a group, might bias remaining jurors.

2. Batson v. Kentucky: 14th Amendment governs exercise of challenges in criminal trial. No defendant has a right to jury of own race, but defendant does have the right to a jury whose members selected pursuant to nondiscriminatory criteria.

3. Edmonson v. Leesville Concrete Co: P claims racial discrimination in D’s preemptory challenges. Court held that this was as violation of Constitution

and civil rights because the civil proceedings have enough of a Government and state interest/participation.

4. J.E.B. v. Alabama: Complaint for paternity where state used 9/10 challenges to excuse males from jury. Issue: whether the EP clause of 14 th

Amendment forbids challenges on base of gender as well as race. Court ruled that could not use discrimination against either group. Individual jurors have right to nondiscriminatory procedure. Note O’Connor’s concurrence on the costs of that decision. Scalia’s concurrence:

5. Race and Gender cannot serve as a proxy for bias. The protected classes + economic background. Voir dire provides mechanism by which court can discover real bias.

6. Process to Challenge the Challengea. Make prima facie showing of intentional discrimination; then Party

exercising challenge must explain reason for strike. P. 428 i. Cognizable group (No age, Maybe religion, Yes on Race, Gender)

ii. Peremptory challenges used to remove members of that groupiii. Peremptory challenges permit those who want to discriminate to do soiv. Can introduce other circumstances/facts to prove

7. INCLUDE FRCP LANGUAGE ON BATSON CHALLENGES. P.4298. McCollum: criminal defendant held to be state actor. Crazy, because maybe

the real state action was pulling the jury members. Thomas said blk defendants will rue the day, because it will apply both ways.

9. When to raise challenge? Normally before jury sworn in. In OK, object when striking--when challenge, judge would send all jurors out or go to chambers

10.Good trial lawyer can come up with any excuse to challenge.11.In OK, if challenge overruled, can use for someone else, then appeal.

C. Jury Size1. OK: Civil litigation, if the matter concerns over $10,000 or a felony, there is

a 12 person jury. If the matter concerns less than $10,000 or is a misdemeanor, there is a 6 person jury. If civil trial or a misdemeanor, ¾ verdict. If felony, needs to be unanimous.

2. Fed court: unanimous, unless parties agree otherwise. 6-12

D. Jury Nullification and its Limits1. Criminal only.2. Jury nullification occurs when a jury “based on its own sense of justice or

fairness—refuses to follow this law and convict in a particular case even though the facts seem to point to guilt as only conclusion.

2. Nullification is inherent in the jury’s role as the conscience of the democratic community.

III. Summary Judgment—Adjudication without Trial or Jury

Rule 56 authorizes the court to enter judgment where there are no disputed factual issues to be determined at trial and the moving party is entitled to a judgment as a matter of law (no discretion). Or when the concern is strictly one of law, which is for a judge to decide. All reasonable inferences for non-moving party.

Can have a partial or total S/J.

Summary Judgment Rule 56

Distinguish S/J from Judgment on the Pleadings (12c) or from a Motion to Dismiss for Failure to State a Claim (12b6). Rule 12 motions: court relies entirely on the pleadings to determine the facts. S/J: Court looks beyond the pleadings and considers all other written evidence. Directed Verdict: granted on the basis of evidence presented at trial.

I. Summary Judgment: FRCP 56, Oklahoma Rule 13A. Two requirements

1. no material issue of fact to be determined at trial; and2. one party is entitled to judgment as a matter of law.

B. Full Summary Judgment1. If granted, case dismissed2. If denied, case goes on

C. Partial Summary Judgment1. If granted, only those issues drop from case, try the rest2. If denied, all issues are tried.

D. Any party can move for it, court may grant for either party tooE. What can you include?

1. Can attach anything necessary to show lack of issue, such as depositions, interrogatories, admissions, affidavits, etc.

2. Also include concise statement of material facts, specifying where you’re getting the info.

3. When attach information, it must be admissible. F. When can you file it?

1. In Federal Court, defending party can any time, claimant can 20 days after claim is filed, or anytime after motion for s/j filed by adverse party. Served at least 10 days before trial in Fed, 20 days in OK

2. In Oklahoma Court, any time after claim is filed.3. Can ask for additional time.

H. How to contest a motion for S/J?1. Provide a concise written statement of why there IS a genuine issue of

material fact. 2. Look at 56e. Can’t just deny. If don’t respond, will be granted???. 3. In OK, if don’t respond, you will likely lose. Have to respond even if

unsupported???I. If you make a motion for S/J, opens up case, and in OK, court can grant for

either party.

Anderson v. Liberty Lobby, Inc. (1986): In deciding whether a heightened evidentiary requirement impacts the process for ruling on S/J, court said that the threshold inquiry is whether there’s a need for a trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Party opposing motion must present affirmative evidence

to defeat motion for S/J. “Court looks at evidence through the prism of substantive evidentiary burden.”Problem: Does this mean that the court weighs evidence? Opinion doesn’t say how the court achieves. Court also talks about what a jury would do. But if went to a trial, there would be much more evidence presented.

Issues of material fact are those that might affect the outcome of the suit under the governing law. A genuine dispute is one which a reasonable jury could resolve against the movant.

Tests for issues of fact and dispute:OK: Scintilla Test—if non-moving party has any competent evidenceFed: Sufficient & substantial evidence test; must have sufficient or substantial evidence to sustain a jury verdict.Court must apply same burden of proof party would have at trial. 3 approaches to how court considers evidence:1) only evidence favorable to non-moving oarty2) OK: all evidence and inferences but look at in light most favorable to non-

moving party and disregard conflicting evidence favorable to moving party.3) Fed: all evidence and inferences favorable to nonmoving party but also

unfavorable uncontradicted evidence.

Once filed, will have meeting with the judge. Have a court reporter there. Look at the burdens of production and persuasion

Matsushita v. Zenith: If factual context makes Pl’s claim economically implausible, need more persuasive evidence to support claim for S/J than would be necessary otherwise.

How to Successfully Move for Summary JudgmentRequirementsa. Movant must satisfy her burden of production (prima facie showing that entitled to S/J)

If moving party bears burden of persuasion at trial,

Until A, S/J for D

ABurden of Production

Burden of PersuasionFactfinder determines if

satisfiedB

C

After C, S/J for P

EVIDENCE

She must support the motion with enough credible evidence as would entitle her to a directed verdict at trial. (no reasonable jury could find for the opposing party.)

If movant satisfies, then the burden of product shifts to nonmovant, who must then show that there is a genuine issue of material fact or submit an affidavit requesting additional discovery under 56f.

If non-moving party will bear the burden of persuasion at trial. Defendant: Moving party may submit evidence that negates an essential element

of non-moving party’s claim, OR Moving party may demonstrate that the non-moving party’s evidence

is insufficient to establish an essential element of the nonmoving party’s claim.

Celotex Corp. v. Catrett: P sues asbestos manufacturers claiming that her husband’s death resulted from exposure to Celotex’s products. Celotex (D) moves for summary judgment on the basis that no evidence existed that the decedent had been exposed to Celotex’s products. The district court granted the motion, and the court of appeals reversed, holding that Celotex had not offered sufficient evidence to rebut P’s allegation.

Rule: FRCP 56 does NOT require that the moving party negate the non-movant’s claim. A party can also meet her initial burden by showing that the non-movant cannot establish an essential element of the case that it will have the burden of proving at trial.

Can a court order S/J sua sponte? Fed: YesOK: No cases on this, but 12 O.S. 2013e suggests that it would be okay.

JUDGEMENT AS A MATTER OF LAWFRCP 50When a case goes before a jury, the court still has the authority to determine whether there is sufficient evidence to support a jury verdict. If the court decides that there is insufficient evidence, it may enter judgment as a matter of law. The standard is the same as for summary judgment and for a directed verdict. JMOL appropriate “if during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." FRCP 50(a)(1). In other words, has the plaintiff met the burden of production? This is a question of law for the judge. If there is enough evidence, it is a question of fact for the jury. If the case goes to the jury and comes back with a verdict for which there’s insufficient evidentiary support, the court can enter judgment notwithstanding the verdict.

New Terminology as a result of FRCP 50!Directed Verdict = Judgment as a Matter of LawJNOV = Renewed Motion for Judgment as a Matter of LawOK uses demurrer, directed verdict, and JNOV.

After jury verdict, losing party can make a renewed oral motion for JMOL, but only if

she did so at the close of evidence. OK:

JNOV. Must raise at close of evidence to

raise on appeal. Motion after judgment

must be in writing. Fed: 10 days after entry of judgment.OK: 10 days after

judgment prepared/filed.

The motions for directed verdict and JNOV should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. Here, seems like OK’s scintilla test. But the standard cited by the court is “substantial evidence;” there must be a conflict in substantial evidence to create a jury question. It is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Consider evidence favorably to non-moving party and uncontradicted evidence. OK: consider evidence in light most favorable to non-moving party.

New TrialsFRCP 59JMOL available only where evidence is so weak for one side that no reasonable jury could find otherwise. Allows court intervention in very limited circumstances. If jury verdict is against the weight of the evidence, court may intervene under FRCP 59 and order a new trial.

Circumstances allowed: Verdict is against the clear weight of the evidence. (In ruling on a new trial, judge doesn’t have to view evidence in certain light, but cautioned not to substitute their judgment. If size of the verdict “shocks the conscience.” Here, can use remittur, where court gives plaintiff the option of accepting a lower amount rather than going through another trial. Opposite is additur. S. Ct. said additur is unconstitutional. Misconduct by counsel, or other unfairness at trial, or because of newly discovered evidence.

Under Rule 59, must be made within 10 days. If longer, make motion under Rule 60b2. OK doesn’t have a Rule 60, but can petition for new trial under 12 O.S. 655, where you’d file a petition as if it were a new trial. FRCP 60a is a motion to set aside for clerical error—can be done by court or by parties. 60b other motion to set aside or vacate—based on six grounds, last is catch-all.

Errors: if plain error, will automatically be overturned on appeal. (Harmless error: A new trial may not be granted "unless refusal to do so appears to the court inconsistent with substantial justice." "The court . . . must disregard any error or

End of Plaintiff’s Case.Defendant moves for

JMOL.OK: demurrer to evidence

End of Defendant’s Case. Both parties can move orally for

JMOL. In OK, directed. Must state why entitled. If both move, judge will consider separately. In some jurisdictions, if both

move, judge will take case from jury.

Case to JURYFiling

12b6 or 12cmotion to dismiss

S/j

Trial Starts

defect in the proceeding which does not affect the substantial rights of the parties". Rule 61.) Between those two is a gray area—court uses discretion.

OK: 12 O.S 651: Nine grounds, which OK S. Ct. said are exclusive. If not, abuse of discretion. Fed: Broad reasoning: for any reason at common law; can also use OK’s grounds.

Court can order a new trial sua sponte. Within 10 days, with notice, on any basis that parties could have used.

Can get a partial new trial. Ask: Are issues clearly severable? (OK won’t split in a lot of cases)

If make motion for a new trial and renewed motion for judgment as a matter of law at close of trial, ask court to rule conditionally on the motion for new trial. If JMOL is reversed and the court didn’t rule on the new trial, might have to go through litigation again. Swank says that in Oklahoma, don’t need to make a motion for a new trial if you’ve raised issue of all errors during the trial. If you didn’t catch them, need to move for new. With the motion for a new trial, you need to include ALL errors or you can’t raise them on appeal. Not necessary in Fed court.

(With the 10 day limit, Rule 6 comes into play—if have 11 days or less to file, don’t count Sat., Sun., or holidays). There is NO EXTENSION of this deadline. Must be FILED by the deadline.

An order for a new trial is not appealable because it is not a final judgment. A party wishing to appeal the new trial order must wait until after the new trial has been completed and a final judgment has been rendered. He may then appeal from the final judgment and raise the issue of the new trial order.

3. Other Techniques for Controlling Juriesa. Admissibility of Evidence

1. OK has adopted Daubert, where judge acts as gatekeeper for expert evidence and to make sure that testimony rests on reliable foundation.

2. Foundation includes peer review and publication, and the extent to which the info has been accepted by the scientific community. Has data been prepared independently of the trial or specifically for the trial?

b. Jury Instructions1. Judge instructs jury on relevant law. FRCP 51: can instruct before

arguments but almost always done at the end. OK: at end. 2. Can request special instructions: this should be done in writing before the

final pretrial conference. 3. If something weird happens during the trial, though, may still request special

instructions. (To prevent manifest injustice). 4. If you want to challenge instructions, must do so before jury goes out. Must

state grounds when object.

5. Plain error: error occurred, error was plain, error affected the substantive rights of parties, and not correcting would affect the fairness of the proceedings. (OK: compromises integrity). Can consider error sua sponte

6. Might waive right if don’t object before jury goes out.

c. Form of the Verdict1. Federal

i. General Verdict (FRCP 49); can be general supplemented with interrogatories

ii. Special Verdict (FRCP 49a)2. Oklahoma

i. OK Constitution Art. VII §3 says must have general verdict.ii. Can have General Verdict with Special Findingsiii. Judge needs the agreement of both parties to do a special verdict

d. Judicial Comment1. In federal court, court can comment on evidence (not in FRCP 51, but from

CL history) but shouldn’t invade the province of the jury. Judge can’t take on role of witness, counsel, or stress one theory. Can summarize the case in the voir dire and in instructions.

2. OK: Judge cannot comment on evidence. May be reversible error; can summarize.

e. Juror Misconduct1. Judicial policy supports not inquiring into how jury reached verdict.

i. stability of judgmentsii. Protect jurors from harassment by disappointed litigantsiii. prevent verdicts from being set aside by juror doubts or second thoughts

2. Iowa Rule: Intrinsic vs. Extrinsic Influencesi. Overt acts which can be objectively corroborated or proved. Evidence

here is admissible.ii. Intrinsic influences aren’t capable of being independently proved, so are

inadmissible. iii. FRE 606 governsiv. In Tanner, jury members smoking dope and snorting cocaine: not

admissible..

Res Judicata and Collateral EstoppelRes Judicata Estoppel

Involves same parties or thoseIn privity, or same claim.

Res Judicata DirectSame lawsuit, differentparties. Not used.

Merger: If Pl. won, Bar: If Def. won, claim merged into Pl. barred from judgment litigating. Collateral

Different Claims b/tw

Different parties…but

Claim Preclusion must have been

1. Same parties or in privity applied against same

2. Same claim or C/O/A party in lawsuit or in

3. Judgment on merits privity.4. Final Judgment

Issue Preclusion

Stare Decisis: Refers to matters of law. Law of the Case: If court decidesRJ and Estoppel can apply to law or facts matter of law in trial, will hold

1. Claim Preclusion: Claims that were brought or could have been brought are precluded (whether or not they were litigated).

Elements:a. Two cases must involve the same claimb. Parties to two suits must be identical or in privityc. First case must have ended in a final valid judgment on the merits

a. Scope of a Claim

Approaches to Defining a Claim:

Transaction Test Used in OK. “common nucleus of operative fact”Are facts closely related in time, space origin or motivationDoes treating as 1 transaction jive with expectations or biz

practicesPrimary Rights: Right to personal injury, right to property. Minority:Single Wrongful Act: Gives rise to multiple claims.Sameness of Evidence: If same evidentiary showing would justify recovery for

claimant in both suits. See also Same Law/Theory (grew out of cl pleading).

Whatever the test, claim is personal to each individual harmed. W/r/t contract claim, have to bring all claims that have arisen at the time of the suit.

b. Parties or Persons in Privity—Think in terms of Claimant!Claim preclusion requires that parties to the two suits:

1. Parties are identical2. Parties in privity with litigant from prior case

i. In modern terms, privity found with two types of relationshipsii. Nonparty is bound if she was “represented” by a party to another

case. (If controlled litigation, for example)iii. Substantive legal relationships between a litigant and nonparty

will justify binding the nonparty. (Successive owners of same property, assignor of contract)

3. Same configuration as in previous action (not requirement for issue)

Nonparties may be bound if they are in privity with a party to the litigation. Idea that each should have their day in court. But, absolute plaintiff autonomy can be inefficient, so temper with FRCP 13, rules about compulsory counterclaims. Oklahoma and Federal: Rule 13 requires Def. to file a mandatory counterclaim or waive it - prevents claim preclusion issue.

c. Valid, Final Judgment on the Merits1. Must have judgment on the merits; dismissal for some procedural reasons don’t count.

a. Some argue that given permissive pleading rules, if party had a chance to get to the merits and didn’t, that’s sufficient. Unsure about 12b6b. If in favor of claimant, usually considered to be on the merits. Frcp 41b

2. Valid judgment; jury not required. a. Summary judgments, default judgments, and directed verdicts count. b. FRCP 41 provides federal exceptionsc. Court will often clarify by dismissing with or without prejudice.

3. Final Judgmenta. Doesn't have to be correct judgment, just final. Always appealb. Judge must sign order in Oklahoma for it to be finalc. Depends on different states if pending appeals considered final. d. If prior judgment, used for preclusion but then is reversed, use a 60b5 to continue 2nd action.

CLAIM PRECLUSION IS WAIVABLE DEFENSE!

d. Exceptions to Claim Preclusion1. Parties agreed to split claim2. Court in first action expressly reserved Plaintiff’s right to pursue 2nd action3. Pl unable to rely on theory or seek certain remedy because of court’s

shortcomings4. Judgment in first action was plainly inconsistent with fair and equitable

implementation of law5. Substantive policy w/r/t continuing wrong, where plaintiff given option to sue

once or to sue from time to time6. Policies favoring preclusion overcome by something extraordinary.

ISSUE PRECLUSIONCan be used both offensively and defensively

Same issue of fact, law related to factActually litigatedDetermined by court or juryEssential for JudgmentValid and final judgmentWas the party in 2nd a party in the 1st, or in privityWas there a Fair opportunity to litigate issueDoesn’t have to be same claim, just same issue

a. Same Issue Litigated and DeterminedLook at pleadings, record. Not always clear.Cromwell v. County of Sac: Issue not precluded because it was not actually litigated. (arguing fraud vs bona fide purchaser) The actually litigated requirement ensures that the parties will have engaged in a full adversary presentation of the issue.

b. Issue Determined was Essential to the JudgmentRios v. Davis: The finding that Rios was negligent was not essential or material to the judgment, so no issue preclusion. (Judgment was based on Davis' contributory negligence)The court found that Rios was negligent, but Rios still won the case. Rios’ negligence wasn’t essential in first action—it was a conclusion or a determination but not a JUDGMENT. Rios would have had no reason to appeal the finding that he was negligent, so can’t protect himself if 1st judgment improper. This is why nonessential issues aren’t precluded.

c. Against Whom can Preclusion be Asserted?Parties or those in privity. Limiting factor: Due Process

Hardy v. Johns-ManvilleSTOPPED HERE