Civ Pro Main
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Transcript of Civ Pro Main
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Civil Procedure Outline
I. The Adversarial System
A. Four Lessons
1. Doctrine
a. Formal rules of litigation (FRCP)
2. Strategy
a. Practical considerations (time, money principle)
3. Theory
a. Different frameworks for understanding the civil litigation
system
4. Skills
a. Actual practice (drafting a complaint, answer, negotiation)
B. Theories of Adjudication FRCP 1: Rules shall be construed and
administered to secure thejust, speedy and inexpensive determination of every
action. FRCP 1 does not provide much guidance. Therefore, the three theories
below are applied
1. Fair Fight
a. Judge is passive referee that simply follows and enforces
the rulesb. The only interests are those party to the litigation.
c. Mitchell v. A&K Truck on the premises
2. Justice Between the Parties
a. Judge is active and corrects for disparities between the
parties
b. Only interests are those party to the litigation
c. Conley Black workers complaint lacks sufficiency but is
accepted because need discovery
3. Greater Good
a. Judge is active and considers larger interests of society
b. Takes into account third parties (other interest than just
those before the court)
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c. Bands Refuse Judge called own witnesses and
introduced own evidence
OTHER NOTES:
I. Pleadings and Motions Defined: Rule 3, 7
A. Rule 3. Commencement of Action: begins with filing of complaint
B. Rule 7. Pleadings allowed; forms of motions
1. 7(a): 2 kinds of pleadings allowed: COMPLAINT and ANSWER
a. REPLY (answer to an answer) allowed when answer contains a
COUNTERCLAIM, or by ORDER of the court
II. Initiating the Lawsuit
A. Plaintiffs Claim (Complaint)
1. Process
a. File FRCP 3: Action is started by filing the complaint
with the court
b. Serve Complaint is given to the opposing party or parties
2. Rules for assessing a complaint
a. FRCP 8(a) A pleading which sets forth a claim for relief
shall contain
8(a)(1) A short plain statement of the
grounds upon with the courts jurisdictions depends, unless the
court already has jurisdiction and the claim needs no new grounds
for jurisdiction to support it;
8(a)(2) Short, plain statement of a claim
showing pleader is entitled to relief; and
Flaws to avoid
Missing an element
i. Concerns include
cannot answer
Notice to the court
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Flush out
meritless claims
Negating an element
Establishing an affirmative defense
When flawed Subject
to motion to dismiss
Particularity
Beyond reasonable doubt that plaintiff can
prove no set of facts to establish claim Connely =
Mere possibility
Particular enough that can draw fair
inference
Sutliff = fair inference
8(a)(3) a demand for judgment for the
relief the pleader seeks; relief in the alternative or of several
different types may be demanded
b. Background rules
Allegations taken as true
Allegations considered on their face (no
evidence)Mitchell v. A&K
No legal argument Sutliff
3. Notice Pleading level of detail or specificity
a. FRCP 12(b)(6) Failure to state a claim upon which relief
can be granted; complaint should not be dismissed for failure to state a
claim unless it appears beyond a doubt that P cant prove facts supporting
claim
i. Mere possibility
Complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief
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1. Conely v. Gibson
a. Union violated federal act by failing to represent
them fairly in collective bargaining with employer (Black
union members sue for discrimination, defendant moves to
dismiss for failure to state a claim, court holds for plaintiff.)
b. Rule 8(a) does not require a claimant to set out in
detail the facts upon which he bases his claim
ii. Fair inference
Complaint must contain either direct allegations on every material
point necessary to sustain a recovery or allegations from which an
inference fairly may be drawn that evidence of material points will
be introduced at trialSutliff v. Donovan
iii. Specific facts
Not good law - Gillispie: P claims some Goodyear (D) came on her
property, embarrasingly hauled her off, and ridiculed. Ct holds that
b/c complaint neglects to include what happened, when it
happened, who did what, etc., complaint doesnt satisfy pleading
standard (factual insufficiency) and gives D no notice what to
defend against.
b. FRCP 12(e) Request for the P to give a more definite
statement of the allegations in the complaint
i. Board of Harbor Commissioners
Facts: Oil discharged into waterway. Unclear who did it. D moves
for more definite statement in order to frame an appropriate
response pursuant to Rule 7. Court held for P.
Rule: Leans toward the fair inference standard. Information is
specific enough b/c all of the elements are addressed.
(If P gives more definite statement that is still not specific enough
can follow up with motion to dismiss)
c. FRCP 12(f) Motion to strike redundant, immaterial,
impertinent and scandalous matter
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4. Policy considerations for determining whether the complaint
is specific enough (background policy considerations for borderline cases)
a. Sufficient notice to the D
b. Allows investigation
c. Provides early assessment of the merits
d. Prevents a fishing expedition
e. Who has access to the additional info
f. Harm is worthy of the litigation
5. Pleading in the alternative
a. FRCP 8(d)(1) : Each allegation must be simple, concise,
and direct
b. FRCP 8(d)(2): A party may set forth 2 or more statements
of claim or defense alternately or hypothetically
i. If by the nature of the circumstance the would not
know which allegations are right
ii. Lack of knowledge pleading in alternative is OK
iii. If facts should be known pleading in the alternative
not OK
iv. Can only collect on one of the claimsc. McCormick v Kopmann(Car Crash Case)
Facts: McCormick dies in head on collision. Wife sues (1) bar owner
(Huls) for over-serving alcohol and (2) driver (Koppman) for crossing
over the center line, causing the collision with her husband. Koppmann
moves to dismiss b/c of contradicting allegations. Denied.
Rule: Pleading in the alternative is allowed where the P lacks knowledge
about the key facts in good faith
Policy: Look at the models of adjudication
i. Justice between the parties Should not be able to
plead in the alternative if she knows the truth
ii. Fair fight Should be able to use the evidence b/c it
could be used against her
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6. Heightened Pleading Standard
a. FRCP 9(b) In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge and other condition of the mind of
a person may be averred generally
i. Strong inference standard
b. PSLRA(Private Securities Litigation & Reform Act)
State with particularity facts giving rise to a strong inference that D acted
with required state of mind
i. 2nd Circuit Strong Inference Standard (majority
approach)
P must show motive and opportunity to
commit fraud
ii. 9th Circuit Great Detail Standard
P must plead with great detail for
deliberately reckless OR conscious misconduct (allegations
in detail of who, what, when, where, how)
c. Background policies for general particularity and
heightened pleadingi. Giving notice to the D and the court
ii. Sometime giving the court the ability to assess the
merits
iii. Preventing fishing expeditions
iv. Being attentive to who has the factual information
d. Ross v. Robins (Faulty Birth Control Case) 2nd
Circuit
Facts: Ross purchases shares of Robins. Robins did not report safety
and efficiency problems with the Dalkon Shield, but knew about
them. After FDA made a public disclosure of the problem, stock
prices fell. D moves to dismiss under 12(b)(6) for failure to comply
with 9(b). Move to dismiss granted. P appeals.
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Rule: Cases involving the Private Securities & Litigation Reform Act
must meet a heightened pleading standard. . . strong inference
standard.
e. Cash Energy v. Weiner(Environmental Cleanup Case)
NOT GOOD LAW
Facts: Cash Energy engaged in storage and/or transfer of chemical
solvents on a site adjacent to Weiners property. Weiner believes his
land has been contaminated as a result of this activity. D moves to
dismiss under 12(b)(6) for failure to comply with 9(b). Court grants
motion to dismiss. P appeals.
Rule: Court holds cases involving CERCLA to heightened pleading
standard, but this is not the law.
f. Leathermann v.Tarrant County (Drug Bust Case)
GOOD LAW
Facts: Tarrant Co. obtains search warrants. Homeowners claimed
assault. Rule: Rule 9(b) only applies to cases involving fraud, mistake
or PSLRA. Rule 8(a)(2) still stands otherwise. Cash Energy is NOT
the law. Rely on Leatherman.
B. Defendants Response
1. RULE 12 MOTIONS
a. Rule 12(a) Timing to file responsive pleading
i. 12(a)(1)(A) Answer complaint w/in 21 days
ii. If court grants motion to dismiss do not need to answer
Timing under 12(a) Within 21
days
Within 14 days Never
Answer complaint 12(a)(1)(A)
File and serve a 12(b)(6)
motion
12(a)(4)(A) wait for
court to rule
12(b)(6) motion is denied 12(a)(4)(A)
12(b)(6) motion is
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granted X
Denies 12(e) motion for
more definite statement
12(a)(4)(A)
Grants 12(e) motion for
more definite statement
12(a)(4)(B) after P
fixes complaint
b. Rule 12(b)
(b)(1) Court lacks jurisdiction over the subject matter of the suit
(b)(2) Court lacks proper jurisdiction over D
(b)(3) Court is not the proper location for the suit; improper venue
(b)(4) Insufficiency of process
(b)(5) Insufficiency of service of process
(b)(6) Failure to state a claim upon which relief may be granted
i. Motion to dismiss flaws
1. Missing an element
2. Negating an element
3. Establishing an affirmative defense
ii. Use Conely and Sutliffstandards to assess whether
12(b)(6) should be granted
iii. Court is limited to the four corners of the complaint andmust take all of the allegations as true
(b)(7) Failure to join a party
c. Rule 12(c) Motion for judgment on the pleadings (after
the complaint and answer are done)
i. Vehicle for the D to answer
ii. For failure to state a claim
iii. Motion by the P if the admits all of the relevant
allegations
iv. Can be just like motion to dismiss for failure to state a
claim, but is normally after the answer; same analysis
v. Must be brought forward without undue delay
d. Rule 12(e) Motion for a more definite statement
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i. Usually used b/c unintelligible, not for want of detail
ii. If you understand what the P is saying but want more
detail, some courts grant the motion; others dont (e.g. US v. Board
of Harbors)
e. Rule 12(f) Motion to strike
f. Rule 12(g) All then available Rule 12 motions must be
consolidated into one pleading. All defenses not brought are waived
except as under 12(h)
g. Rule 12(h): Waiver or preservation of certain defenses
i. 12(h)(1) Disfavored defenses
Lack of personal jurisdiction 12(b)(2)
Improper venue 12(b)(3)
Insufficiency of process 12(b)(4)
Insufficiency of service of process 12(b)
(5)
ii. 12(h)(2) Favored defenses
Failure to state claim upon which relief
can be granted 12(b)(6)
Failure to join a party 12(b)(7)
iii. 12(h)(3) Most favored defenses
Lack of subject matter jurisdiction 12(b)
(1)
Rule Rule Explanation Defenses Timing
12(b)(1) Lack of subj matter
jurisdiction
Most favored 12(g),
12(h)(3)
Bring at any time
12(b)(6) Failure to state a
claim upon which
relief can be granted
Favored 12(g), 12(h)
(2)
Can be made in any
pleading or by
motion for
judgment on the
pleadings or at trial
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on merits
12(b)(7) Failure to join a party Favored 12(g), 12(h)
(2)
Can be made in any
pleading or by
motion for
judgment on the
pleadings or at trial
on merits
12(b)(2) Lack of personal
jurisdiction
Disfavored 12(g),
12(h)(1)
Will be waived
forever if you did
not bring it with
other Rule 12
motions
12(b)(3) Improper venue Disfavored 12(g),
12(h)(1)
Will be waived
forever if you did
not bring it with
other Rule 12
motions
12(b)(4) Insufficiency or
process
Disfavored 12(g),
12(h)(1)
Will be waived
forever if you did
not bring it with
other Rule 12
motions
12(b)(5) Insufficiency of
service or process
Disfavored 12(g),
12(h)(1)
Will be waived
forever if you did
not bring it with
other Rule 12
motions
2. DEFAULT
a. FRCP 55(a) Default entry by the clerk when the has
failed to respond
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b. FRCP 55(b) Default judgment by
(b)(1) Clerk if the award amount is certain; have to give 3 days notice
(b)(2) Court, P must show damages
c. FRCP 55(c) Setting aside entry of default for good
cause shown; if judgment has been entered, may likewise set aside under
Rule 60(b)
d. FRCP 60(b) relevant grounds for setting aside default
judgment would be mistake, inadvertence, excusable neglect, surprise;
this is more likely to not be set aside because it is that much more in the
process
e. Three factors courts use to evaluate setting aside (Shepard
Claims)
i. Non-defaulting party will not be prejudiced
Witnesses, evidence, SOL
ii. Defaulting party has meritorious defense
iii. No culpable conduct by defaulting party
If no prejudice and has meritorious
defense, then culpable conduct must be willful for default
to the set asidef. Shepard v. Darrah
Facts: Shepard (independent claims adjuster) alleges that Darrah
(insurance broker) failed to pay him for services rendered. After delivery
of the complaint Darrahs attorney misses filing date for answer due to
confusion about extension
Rule: Default judgment will be set aside if P is not prejudiced, D has a
meritorious defense and the conduct was not willful
3. ANSWER
a. Admitting or Denying
i. Admit an allegation as true
ii. Deny
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iii. Lack knowledge or information sufficient to form a
belief
iv. Hybrid- give more particular responses, combo of
above
b. Rules
i. FRCP 8(a) Claim for Relief must state: (1) short and
plain statement for cts jx, (2) short/plain state showing P is
entitled to relief, and (3) demand for relief sought (relief in
alternative or different types of relief)
ii. FRCP 8(b) D shall respond to each averment by
either (1) admit, (2) deny or (3) lack of knowledge or information
sufficient to form a belief
LKISFB is treated as a denial
If it is found that you have sufficient
knowledge or info, then LKISFB is treated as an admission
(David v. Crompton & Knowles)
iii. FRCP 8(d) (1) Must be simple, concise, and direct,
(2) may give 2 or more defenses/claims
alternatively/hypothetically. Pleading sufficient if at least one issuff.
iv. FRCP 10(a) Need Caption
v. FRCP 10(b) Form of pleadings. Each claim or
defense should be in a separate numbered paragraph; one
allegation per paragraph
c. Purpose of the answer
i. Respond to the allegations
ii. Assert defenses
iii. Provide any counter or cross claims
d. David v. Crompton & Knowles
Facts: David was injured by a shredding machine in a factory. says they
dont have sufficient knowledge to respond an allegation, then want to
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move to amend the answer to a denial. Motion to amend denied.
Rule: If you claim lack of knowledge and are found to have knowledge,
could have acquired the knowledge (Should have known) or the info
was within your control (Only one who could have known), then you
have improperly used lack of knowledge answer and your answer will be
deemed admitted instead of denied.
e. Affirmative Defenses (shield)
i. FRCP 8(c) Affirmative Defenses (list is not
exhaustive)
D must include in answer, answer to
amended complaint, or motion to dismiss or lose them
FRCP 12(h)(1)
D must raise the issue and the D must
prove it
SOL is a common affirmative defense
15(a) says you may amend an answer to
insert affirmative defense
f. Counter Claim and Cross Claim (sword)
i. FRCP 13(a) Compulsory Counterclaims must be
brought or lost
Must arise from same T&O weigh
following factors
Logical relationship between the claims
for them to be compulsory (liberal view)
Substantially the same evidence/facts -
If the same evidence would substantially dispose ofthe issues raised by the opposing claims then the
counterclaims are compulsory; if not, then they are
permissive
Substantially same law applies
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ii. FRCP 13(b) Permissive Counterclaims may be
brought but do not have to; different T&O
iii. FRCP 13(g) Cross-Claim against Co-Party may be
brought if same T&O as any of claims or counter-claims
iv. Purpose
Judicial efficiency same jury, same case
load
Consistency Courts could rule
differently on the same case or issue if raised at different
times in different courts
Destroys Ps image
v. Wigglesworth v. Teamsters Union
Facts: During union meetings, Wigglesworth was prevented fromexercising his free speech rights. After the complaint was filed,
Wigglesworth holds a press conference at which he accused the
union of being mafia run and that certain union elections had been
fixed. files counterclaim. files motion to dismiss under 12(b)
(1). Motion to dismiss granted.
Rule: Test for same Transaction and Occurrence:
Logical relationship between the claims for them to be
compulsory (liberal view)
Substantially the same evidence/facts - If the same evidence
would substantially dispose of the issues raised by the opposing
claims, then the counterclaims are compulsory; if not, then they are
permissive
Type of Claim Against Same T&O Different T&O
Counter Opposing Party Compulsory 13(a)
Must be brought
Permissive 13(b)
May be brought
Cross Co-party 13(g)
May be brought
13(g)
Cannot bring
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Substantially same law applies
NOTE: All of the above factors do not need to be met for there to
be same transaction and occurrence
C. Amended Pleadings
1. Process for amending
a. FRCP 15(a)(1) Party allowed to amend once as of right
within
i. 21 days after serving it, or
ii. If responsive pleading is required, 21 days after service
of resp plead or 21 days after 12(b) motion served, or whichevs is
earlier
Otherwise may only amend by:
(1) leave of the court or
(2) stipulation of the parties.
Leave shall be freely given as justice so requires
b. FRCP 15(b) When issues not raised in the pleadings are
tried by express or implied consent of both parties, they shall be treated as
if they are part of the pleadings. Amended pleading allowed, but not
required
c. If a disfavored Rule 12 motion is not brought in the answer,
you can still amend the answer to include this Rule 12 motion so long as it
is in the 20 day period
2. Standard for the court to allow a party to amend
a. Leave to amend will be given freely when justice so
requires
3. Factors the court will take into account in denying leave to
amend:
a. Undue delay
b. Bad faith
c. Prejudice to the opposing party
4. Relation back of an amended pleading
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a. FRCP 15(c) Relation back of amendment
i. Swartz v. Gold Dust Casino
Facts: Swartz falls down stairs at the Gold Dust Casino. She
alleges that the stair were thread bare, worn and slippery. Also, the
stair violates the building code. files and serves a complaint
against Gold Dust and Does I through V for negligence. answers
by denying the allegations. After discovery and interrogatories,
discovered the true identity of Doe I and requests leave to amend
their complaint. files motion for summary judgment. Judge
denies the motion for summary judgment. Motion for leave to
amend is granted. Amended complaint is filed and served upon
John Cavanaugh. Cavanaugh raises 2-year statute of limitations
as an affirmative defense in answer to amended complaint and
moves for judgment on the pleadings.
Rule: Meets requirements for relation back
Changing the party or changing the name
of the party Yes, Doe I becomes Cavanaugh
Same transaction and occurrence Yes,
same day, same woman, same stairs (facts and evidence arethe same); they are both negligence claims (doesnt have to
be the exact same claim)
Timing of the notice Notice (not filing)
within 120 days of the filing of the complaint; ONLY
NOTICE OF THE COMPLAINT IS REQUIRED, NOT
FILING
Form of notice Cavanaugh got the
amended complaint in the motion for leave to amend, also
companies are so overlapped it is reasonable to assume that
Cavanaugh would have known of the action
But for a mistake about identity
Cavanaugh knew but for a mistake of identity that they
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would have been sued
Cavanaugh would argue wasnt a mistake, it was ignorance
ii. David v.Crompton & Knowles
Rule: Meets the requirements for relation back
Change the defendant Yes, change
Crompton to Hunter
Same T&O Yes, same accident, law, etc.
Timing of notice Maybe, Hunter is a
division of Crompton (overlap of corporate entities)
Form of notice yes
But for a mistake Hunter would
recognize that they would be on the hook for the machine;
David thought Crompton was the manufacture. Maybe a
mistake about ownership rights, not who is the
manufacturer
D. Rule 11
1. FRCP 11(a) Failure to sign a pleading, written motion or other
written paper
2. FRCP 11(b) In representations to the court attorney is
certifying that he has made a reasonable inquiry and that to the best of his
knowledge, information and belief (Grounds for Sanctions)
a. No improper purpose
b. Claims, defenses or other legal contentions are supported
by existing law or by a non-frivolous argument for the extension of
existing law
c. Allegations have evidentiary support
d. Denials of factual contentions are warranted on the
evidence or are reasonably based on a lack of information or belief
3. FRCP 11(c) Options for Sanction/types of sanctions
4. FRCP 11(d) Rule 11 sanctions do not apply to discovery
(Rules 26-37)
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5. Rule 11 Sanctions Process 11(b)
a. Basis under 11(b)(1)-(4)
i. 11(b)(1) Improper purpose, including delay
ii. 11(b)(2) No basis in existing law
(two components, only have to meet one)
Subjective must believe had legal
argument
Objective must actually have legal
argument
iii. 11(b)(3) No basis in evidence for the allegation or
assertion
iv. 11(b)(4) No basis in evidence for the denial
v. Creates standards/duty
vi. Notwithstanding your good faith if knowledge or
information was not reasonably researched, subject to sanctions
b. Initiating Process by motion or by court (no safe harbor
when court initiates)
i. Serve motion on party who then has 21 days to correct problem or
motion is filed in courtii. Motion has to describe conduct
iii. Motion has to be separate from any other motion
c. Decision Process
i. Court has to give party chance to respond
ii. Describe conduct explicitly
iii. Describe basis for sanctions
d. Discretion
i. Can violate the basis and not be sanctioned
e. Type of Sanctions
i. Designed to deter not to compensate, because court was using as
cost shifting mechanism
ii. Only strong enough sanction to deter conduct
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iii. Court can refer to state bar, or to go to school, reprimand
iv. A represented party can be sanctioned
Not monetary if basis is 11(b)(2) because client is not
expected to know the law
v. Attorneys fees and costs only available on motion
f. Target
i. Attorney
ii. Firm
iii. Party
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Identify the
action
Basis for
sanction
Initiation Decision
Process
Discretion Types of
Sanctions
Target of
Sanction
Signing 11(a):
Failure to
sign paper
Notify
party, court
N/A Shall. 11(a)
No other
option
Strike N/A
Signing,
filing,
submitting,
or later
advocating
position
with
-improper
purpose (b)
(1)
-no basis in
law (b)(2)
-no basis in
evidence forallegation or
assertion (b)
(3)
-no basis in
evidence for
denial (b)(4)
Sanctioned
if frivolous
either:
-subjectively
(belief) or
-objectively
(no
reasonable
inquiry;
frivolous
legal
argument)
11(b)
Partys
motion:
-serve 21
days before
filing (safe
harbor)
-describeconduct
-only if not
corrected
-not
combine
with other
motion
11(c)(2)
Notice and
opportunity
to respond
11(c)
Order:
-describeconduct
-explain
basis for
sanction
11(c)(3)
May. 11(c)
(4) Can use
discretion
Goal: Deter, not
compensate
11(c)(5)
Options:
-nonmonetary
directive (go toclasses)
-monetary fine to
court
pay other sides
attorneys fees or
costs 11(5)
Restrictions:
-attorneys fees
and costs only if
on motion. 11(c)
(5)
Party, attorney
law firm, or
combination.
11(3)
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6. Zuk
Facts: Zuk, psychologist, had EPPI record therapy sessions for rental. Writes
books that has transcripts from session and gets copyright. Zuk furloughed
(fired). Zuk requests copies of the tapes. EPPI ignores the requests. Requests
them again 1994. Requests are denied.
Rule:
DISCOVERY
III. Discovery
A. Analyze
1. Proper use of device
a. Must be described with reasonable particularity
2. Responsive
a. Did the party ask for it?
3. Relevance Rule 26(b)(1)
a. Reasonably calculated to lead to discovery of admissible
evidence pertaining to claim or defense
i. Merits
ii. Background
iii. Impeach/Corroborate
iv. Clues
If relevant to claim or defense do not need to make
showing
If relevant to subject matter, burden of proof shifts
to party seeking discovery (need court order and good
cause shown)
4. Protected
a. Privacy Rule 26(c)
i. Annoyance, embarrassment
ii. Undue burden or expense Rule 26(b)(2)(C)(iii)
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Other means, source for same information
Already been ample opportunity for
discovery
Rule 26(b)(2)(C)
How much is it in controversy
What are parties resources
Needs of case
How relevant
What are important issues
Are there alternative sources of
information Consider models of adjudication
iii. Trade secrets Rule 26(c)
Economic detriment
Secret not generally known
Injury has to be clearly defined, serious
injury
Competitive disadvantage
Balance between harm of disclosure and
necessity to litigation
b. Protective Order Rule 26(c)
5. Privilege
a. Elements
i. With client (or prospective client)
Upjohn Modified control group test
which stated that only those in corporation who are in a
position to control or even take a substantial part in
decision about any action which the corporation may take
upon advice of attorney
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Modification to protect parties (lower and
mid-level employees) who disclose and in
corporation will need lower level employees to
disclose in order to find out what happened
ii. Legal advice
iii. Legal advisor
iv. Relate to advice
v. In confidence
6. Work Product Rule 26(b)(3)
a. Prepared in anticipation of litigation or for trial
b. By or for another party, or by of for that other partys
representative (including attorney)
Party may obtain discovery of ORDINARY WORK PRODUCT
(but not opinion work product) if:
i. Substantial need
ii. Party cannot get the substantial equivalent without
undue hardship
In ordering discovery of such materials,
courtshallprotect against disclosure of mental impressions,conclusions, opinions or legal theories of attorney or other
representative (OPINION WORK PRODUCT)
Courts generally abide by this and protect
against disclosure of opinion work product
9th Circuit (minority view) Allows
discovery of opinion work product if (1) pivotal
issue and (2) compelling need (not applied to
attorney opinion work product)
Must list in privilege log
B. Discovery Devices
1. Initial Disclosures Rule 26(a)(1)
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a. 26(a)(1)(A) Party must disclose (provide or describe)
what she is going to use to support her claim or defense (do not have to
provide that which is harmful at this stage)
i. Potential witnesses (name, address, telephone)
ii. Documents
iii. Damages
iv. Insurance
2. Depositions Rule 30
a. Testimony under oath that is recorded
b. Reasonable notice
c. Limited to 10 depositions
d. One day, seven hours per depositions
e. Only get to depose person once
f. Third parties can be deposed (special rules apply)
g. Rule 30(b)(6) Describe in reasonable terms the category
of person you want to depose, other side must provide the person that fits
that category
h. Objections to form
i. Compound
ii. Confusing/Unintelligible
iii. Vague or ambiguous
iv. Misleading
v. Asked and answered
vi. Argumentative
vii. Mischaracterized witness testimony/Assumes facts not in evidence
If objections not made at deposition, waive
right for answer not to be admitted into evidence later
Even after objection witness may answer,
objections only serve to make answer inadmissible later
Rule 30(d)(1)
Instruct not to answer
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Privilege
Protective order in place or going to seek
one
Any objection must be state concisely,
speaking objections not permitted
3. Request for production (RFPs) Rule 34
a. Describe a category with reasonable particularity
b. 30 days to respond (written response including objections)
c. Rule 34(b) Produce those documents that are in
producing partys protection, control or custody (as kept or in categories,
but not scrambled)
d. Rule 26(b)(5) Privilege or work product
i. Materials that are attorney-client privilege
ii. Work product in preparation of litigation
Privilege log Must create a log of those
items that are privileged, describe in general terms with
objection
4. Interrogatories (Rogs) Rule 33
a. Limited to 25 in number including subparts
b. 30 days to respond
i. Written answers by attorney and signed off by party
ii. Obligation to answer if reasonably obtainable
Rule 33(d) If have to look through a
large amount of records can just give other party records in
lieu of answering (shift burden to requesting party)
c. Contention interrogatories Identify every fact (or all
evidence) that supports your contention that X
i. Most courts will not allow early on
ii. Used to prove negative (to prove other side has no evidence of X)
5. Exams Rule 35
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a. Parties or those in care, custody or control of party (read
narrowly)
b. Must be in controversy
c. Good cause shown
d. Must have stipulation by parties or court order
6. Request for admission (RFAs) Rule 36
a. Extension of pleadings
C. Limitations on discovery
1. Rule 26(b)(2)(iii) Undue burden
a. Outweighs likely benefits
b. Needs of case
c. Amount in controversy
d. Parties resources
e. Importance of the issue at stake
f. Importance of proposed discovery in resolving the issue
SUMMARY JUDGMENT
IV. Summary Judgment
A. Rule 56(a)
1. Claimant can move 20 days after commencement of action or
after opposing party moves for summary judgment
B. Rule 56(b)
1. Defending party can move for summary judgment at any time
C. Rule 56(c)
1. Motion must be served at least 10 days before hearing (most
courts require at least 21 days)
2. Standard Summary judgment shall be granted if moving party
makes showing that there is no genuine issue as to any material fact
a. What is fact at issue and why is it material?
i. Material if relevant to an element or affirmative defense
b. Is there a genuine issue about it?
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i. Is it plausible that could come out either way?
Adickes v. S.H. Kress & Co.
Key fact Was there police officer in
store?
Material to whether there was a conspiracy
D did not come up with enough evidence
to initiate
D cannot do nothing in moving for SJ,
must make some kind of showing (vague as to what
this requires)
Celotex v. Catrett
Key fact Was P exposed to Ds product?
Material to causation
Rather than showing through affirmative
evidence, D made showing that absence of evidence
on other side (contention interrogatories often used)
Absence of evidence Courts are split on
moving partys burden
Point out there is no evidence (just
state)
Point to evidence in record to show
lack of evidence
D. Rule 56(f)
1. Not enough chance for discovery on issue (premature)
E. Burden of production Whether party has sufficient evidence to go to
trial
F. Burden of persuasion Which party must convince trier of fact
G. Party with burden of proof moves
1. Every reasonable jury wouldconclude that it is more likely than
not that moving party is right
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2. Ex. Every reasonable jury would conclude that it is more likely
than not that Jacques threw the rock
a. Required to make initial showing
b. Only if initial showing is strongly supported does opposing
party have to respond
i. Burden of opposing party is to provide enough
evidence to undermine moving partys evidence sufficiently
such that a reasonable jury could conclude that moving party is
not more likely than not right
H. Party who does not have burden of proof moves
1. No reasonable jury wouldconclude that more likely than not that
party opposing summary judgment is right
2. Ex. No reasonable jury would conclude that it is more likely
than not that Jacques threw the rock
a. Initial showing Logically would make sense not to
require initial showing, but if this were the case could be used as a weapon
too easily
Celotex Ambiguous which of two standard applies
o
Either merely point out that other side has no evidenceo Or must do discovery to show that other side has no evidence
i. Burden of opposing party is to provide enough evidence
that a reasonable jury could conclude that it is more likely than
not right
ii. Note that since party opposing summary judgment will
have burden of persuasion at trial, if moving party has met its
burden, simply attacking the moving partys evidence will not
suffice to survive summary judgment