Civil Procedure Outline I. The Adversarial System A. 1. a. 2. a. 3. a. system 4. a. B.

Skills Actual practice (drafting a complaint, answer, negotiation) Theories of Adjudication FRCP 1: Rules shall be construed and Four Lessons Doctrine Formal rules of litigation (FRCP) Strategy Practical considerations (time, money principle) Theory Different frameworks for understanding the civil litigation

administered to secure the just, speedy and inexpensive determination of every action. FRCP 1 does not provide much guidance. Therefore, the three theories below are applied 1. a. the rules b. c. 2. a. parties b. c. 3. a. b. Only interests are those party to the litigation Conley Black workers complaint lacks sufficiency but is Greater Good Judge is active and considers larger interests of society Takes into account third parties (other interest than just The only interests are those party to the litigation. Mitchell v. A&K Truck on the premises Justice Between the Parties Judge is active and corrects for disparities between the Fair Fight Judge is passive referee that simply follows and enforces

accepted because need discovery

those before the court)

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. 1. a. with the court b. 2. a. 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; i. 8(a)(2) Short, plain statement of a claim Flaws to avoid Missing an element Concerns include cannot answer Notice to the court showing pleader is entitled to relief; and Serve Complaint is given to the opposing party or parties Rules for assessing a complaint FRCP 8(a) A pleading which sets forth a claim for relief Plaintiffs Claim (Complaint) Process File FRCP 3: Action is started by filing the complaint

 meritless claims to motion to dismiss Particularity Negating an element

Flush out

Establishing an affirmative defense When flawed Subject

Beyond reasonable doubt that plaintiff can

prove no set of facts to establish claim Connely = Mere possibility 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. 3. a. Background rules Allegations taken as true Allegations considered on their face (no No legal argument Sutliff Notice Pleading level of detail or specificity 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 Particular enough that can draw fair

evidence) Mitchell v. A&K

1. a.

Conely v. Gibson 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. ii. Rule 8(a) does not require a claimant to set out in Fair inference detail the facts upon which he bases his claim 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 trial Sutliff 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. i. FRCP 12(e) Request for the P to give a more definite Board of Harbor Commissioners statement of the allegations in the complaint 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

4. a. b. c. d. e. f. 5. a.

Policy considerations for determining whether the complaint Sufficient notice to the D Allows investigation Provides early assessment of the merits Prevents a fishing expedition Who has access to the additional info Harm is worthy of the litigation Pleading in the alternative FRCP 8(d)(1): Each allegation must be simple, concise, FRCP 8(d)(2): A party may set forth 2 or more statements i. ii. iii. not OK iv. c. Can only collect on one of the claims McCormick v Kopmann (Car Crash Case) If by the nature of the circumstance the would not Lack of knowledge pleading in alternative is OK If facts should be known pleading in the alternative and direct b. of claim or defense alternately or hypothetically know which allegations are right

is specific enough (background policy considerations for borderline cases)

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. ii. Justice between the parties Should not be able to Fair fight Should be able to use the evidence b/c it plead in the alternative if she knows the truth could be used against her

6. a.

Heightened Pleading Standard 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. b. Strong inference standard 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. approach) 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. i. ii. merits iii. iv. d. 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. Preventing fishing expeditions Being attentive to who has the factual information Ross v. Robins (Faulty Birth Control Case) 2nd Background policies for general particularity and Giving notice to the D and the court Sometime giving the court the ability to assess the heightened pleading P must show motive and opportunity to 2nd Circuit Strong Inference Standard (majority

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. 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. 1. a. i. ii. Defendants Response RULE 12 MOTIONS Rule 12(a) Timing to file responsive pleading 12(a)(1)(A) Answer complaint w/in 21 days If court grants motion to dismiss do not need to answer Leathermann v.Tarrant County (Drug Bust Case)

Timing under 12(a) Answer complaint File and serve a 12(b)(6) motion 12(b)(6) motion is denied 12(b)(6) motion is

Within 21 days 12(a)(1)(A)

Within 14 days

Never

12(a)(4)(A) wait for court to rule 12(a)(4)(A)

granted Denies 12(e) motion for more definite statement Grants 12(e) motion for more definite statement b. Rule 12(b)

X 12(a)(4)(A) 12(a)(4)(B) after P fixes complaint

(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. 1. 2. 3. ii. iii. Motion to dismiss flaws Missing an element Negating an element Establishing an affirmative defense Use Conely and Sutliff standards to assess whether Court is limited to the four corners of the complaint and

12(b)(6) should be granted must take all of the allegations as true (b)(7) Failure to join a party c. i. ii. iii. allegations iv. v. d. Can be just like motion to dismiss for failure to state a Must be brought forward without undue delay Rule 12(e) Motion for a more definite statement claim, but is normally after the answer; same analysis Rule 12(c) Motion for judgment on the pleadings (after Vehicle for the D to answer For failure to state a claim Motion by the P if the admits all of the relevant the complaint and answer are done)

i. ii.

Usually used b/c unintelligible, not for want of detail 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. f. Rule 12(f) Motion to strike 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. i. (5) ii. iii. (1) Rule 12(b)(1) 12(b)(6) Rule Explanation Lack of subj matter jurisdiction Failure to state a claim upon which relief can be granted Defenses Most favored 12(g), Timing Bring at any time 12(h)(2) Favored defenses Failure to state claim upon which relief Failure to join a party 12(b)(7) 12(h)(3) Most favored defenses Lack of subject matter jurisdiction 12(b) can be granted 12(b)(6) Rule 12(h): Waiver or preservation of certain defenses 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)

12(h)(3) Favored 12(g), 12(h) Can be made in any (2) pleading or by motion for judgment on the pleadings or at trial

12(b)(7)

on merits Failure to join a party Favored 12(g), 12(h) Can be made in any (2) pleading or by motion for judgment on the pleadings or at trial on merits Will be waived forever if you did not bring it with other Rule 12 motions Will be waived forever if you did not bring it with other Rule 12 motions Will be waived forever if you did not bring it with other Rule 12 motions Will be waived forever if you did not bring it with other Rule 12 motions 2. a. DEFAULT FRCP 55(a) Default entry by the clerk when the has failed to respond

12(b)(2)

Lack of personal jurisdiction

Disfavored 12(g), 12(h)(1)

12(b)(3)

Improper venue

Disfavored 12(g), 12(h)(1)

12(b)(4)

Insufficiency or process

Disfavored 12(g), 12(h)(1)

12(b)(5)

Insufficiency of service or process

Disfavored 12(g), 12(h)(1)

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. 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. Claims) i. ii. iii. to the set aside f. 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. a. i. ii. ANSWER Admitting or Denying Admit an allegation as true Deny Non-defaulting party will not be prejudiced Witnesses, evidence, SOL Defaulting party has meritorious defense No culpable conduct by defaulting party If no prejudice and has meritorious defense, then culpable conduct must be willful for default Three factors courts use to evaluate setting aside (Shepard FRCP 55(c) Setting aside entry of default for good cause shown; if judgment has been entered, may likewise set aside under

iii. belief iv. above b. i.

Lack knowledge or information sufficient to form a Hybrid- give more particular responses, combo of Rules 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 is suff. iv. v. FRCP 10(a) Need Caption FRCP 10(b) Form of pleadings. Each claim or

defense should be in a separate numbered paragraph; one allegation per paragraph c. i. ii. iii. d. Purpose of the answer Respond to the allegations Assert defenses Provide any counter or cross claims 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

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. i. FRCP 12(h)(1) prove it f. i. SOL is a common affirmative defense 15(a) says you may amend an answer to D must raise the issue and the D must Affirmative Defenses (shield) FRCP 8(c) Affirmative Defenses (list is not D must include in answer, answer to exhaustive) amended complaint, or motion to dismiss or lose them

insert affirmative defense Counter Claim and Cross Claim (sword) FRCP 13(a) Compulsory Counterclaims must be Must arise from same T&O weigh Logical relationship between the claims Substantially the same evidence/facts brought or lost following factors for them to be compulsory (liberal view) 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 Substantially same law applies

ii. iii. iv.

FRCP 13(b) Permissive Counterclaims may be FRCP 13(g) Cross-Claim against Co-Party may be Purpose Judicial efficiency same jury, same case Consistency Courts could rule load differently on the same case or issue if raised at different times in different courts Destroys Ps image Same T&O Compulsory 13(a) Must be brought 13(g) May be brought Different T&O Permissive 13(b) May be brought 13(g) Cannot bring

brought but do not have to; different T&O brought if same T&O as any of claims or counter-claims

Type of Claim Counter Cross

Against Opposing Party Co-party

v.

Wigglesworth v. Teamsters Union

Facts: During union meetings, Wigglesworth was prevented from exercising 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

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. 1. a. within i. ii. 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. a. requires 3. amend: a. b. c. 4. Undue delay Bad faith Prejudice to the opposing party Relation back of an amended pleading Factors the court will take into account in denying leave to Standard for the court to allow a party to amend Leave to amend will be given freely when justice so 21 days after serving it, or If responsive pleading is required, 21 days after service Amended Pleadings Process for amending FRCP 15(a)(1) Party allowed to amend once as of right

of resp plead or 21 days after 12(b) motion served, or whichevs is

a. i.

FRCP 15(c) Relation back of amendment 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 Same transaction and occurrence Yes, of the party Yes, Doe I becomes Cavanaugh same day, same woman, same stairs (facts and evidence are the 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

would have been sued Cavanaugh would argue wasnt a mistake, it was ignorance ii. David v. Crompton & Knowles Change the defendant Yes, change Same T&O Yes, same accident, law, etc. Timing of notice Maybe, Hunter is a Form of notice yes But for a mistake Hunter would Rule: Meets the requirements for relation back Crompton to Hunter

division of Crompton (overlap of corporate entities)

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. 1. 2. Rule 11 FRCP 11(a) Failure to sign a pleading, written motion or other FRCP 11(b) In representations to the court attorney is written paper certifying that he has made a reasonable inquiry and that to the best of his knowledge, information and belief (Grounds for Sanctions) a. b. existing law c. d. 3. 4. Allegations have evidentiary support Denials of factual contentions are warranted on the FRCP 11(c) Options for Sanction/types of sanctions FRCP 11(d) Rule 11 sanctions do not apply to discovery No improper purpose Claims, defenses or other legal contentions are supported

by existing law or by a non-frivolous argument for the extension of

evidence or are reasonably based on a lack of information or belief

(Rules 26-37)

5. a. i.

Rule 11 Sanctions Process 11(b) Basis under 11(b)(1)-(4) 11(b)(1) Improper purpose, including delay 11(b)(2) No basis in existing law argument argument iii. assertion iv. v. vi. b. 11(b)(4) No basis in evidence for the denial Creates standards/duty Notwithstanding your good faith if knowledge or Initiating Process by motion or by court (no safe harbor i. Serve motion on party who then has 21 days to correct problem or motion is filed in court ii. 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. e. Discretion i. Can violate the basis and not be sanctioned 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 11(b)(3) No basis in evidence for the allegation or Objective must actually have legal Subjective must believe had legal ii.

(two components, only have to meet one)

information was not reasonably researched, subject to sanctions when court initiates)

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. ii. Firm iii. Party Target i. Attorney

Identify the action Signing

Basis for sanction 11(a): Failure to sign paper -improper purpose (b) (1) -no basis in law (b)(2) -no basis in evidence for allegation 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)

Initiation Notify party, court Partys motion: -serve 21 days before filing (safe harbor) -describe conduct -only if not corrected -not combine with other motion 11(c)(2)

Decision Process N/A

Discretion Shall. 11(a) No other option May. 11(c) (4) Can use discretion

Types of Sanctions Strike

Target of Sanction N/A

Signing, filing, submitting, or later advocating position with

Notice and opportunity to respond 11(c)

Goal: Deter, not compensate 11(c)(5) Options:

Party, attorney, law firm, or combination. 11(3)

Order: -describe conduct -explain basis for sanction 11(c)(3)

-nonmonetary directive (go to classes) -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)

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. 1. a. 2. a. 3. a. i. Merits ii. Background iii. Impeach/Corroborate iv. Clues If relevant to claim or defense do not need to make If relevant to subject matter, burden of proof shifts showing to party seeking discovery (need court order and good cause shown) 4. a. i. ii. Protected Privacy Rule 26(c) Annoyance, embarrassment Undue burden or expense Rule 26(b)(2)(C)(iii) Analyze Proper use of device Must be described with reasonable particularity Responsive Did the party ask for it? Relevance Rule 26(b)(1) Reasonably calculated to lead to discovery of admissible evidence pertaining to claim or defense

 discovery

Other means, source for same information Already been ample opportunity for 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 Consider models of adjudication Economic detriment Secret not generally known Injury has to be clearly defined, serious Competitive disadvantage Balance between harm of disclosure and

information iii. injury b. 5. a. i. Trade secrets Rule 26(c)

necessity to litigation Protective Order Rule 26(c) Privilege Elements 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

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. iii. iv. v. 6. a. b. Legal advice Legal advisor Relate to advice In confidence Work Product Rule 26(b)(3) Prepared in anticipation of litigation or for trial By or for another party, or by of for that other partys Party may obtain discovery of ORDINARY WORK PRODUCT i. ii. Substantial need Party cannot get the substantial equivalent without In ordering discovery of such materials,

representative (including attorney) (but not opinion work product) if:

undue hardship court shall protect 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 9th Circuit (minority view) Allows against disclosure of opinion work product discovery of opinion work product if (1) pivotal issue and (2) compelling need (not applied to attorney opinion work product) B. 1. Must list in privilege log Discovery Devices Initial Disclosures Rule 26(a)(1)

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. a. b. c. d. e. f. g. that category h. i. ii. iii. iv. v. vi. Objections to form Compound Confusing/Unintelligible Vague or ambiguous Misleading Asked and answered Argumentative If objections not made at deposition, waive Even after objection witness may answer, Rule 30(d)(1) Instruct not to answer Depositions Rule 30 Testimony under oath that is recorded Reasonable notice Limited to 10 depositions One day, seven hours per depositions Only get to depose person once Third parties can be deposed (special rules apply) Rule 30(b)(6) Describe in reasonable terms the category

of person you want to depose, other side must provide the person that fits

vii. Mischaracterized witness testimony/Assumes facts not in evidence right for answer not to be admitted into evidence later objections only serve to make answer inadmissible later

 one 3. a. b. c.

Privilege Protective order in place or going to seek Any objection must be state concisely,

speaking objections not permitted Request for production (RFPs) Rule 34 Describe a category with reasonable particularity 30 days to respond (written response including objections) Rule 34(b) Produce those documents that are in

producing partys protection, control or custody (as kept or in categories, but not scrambled) d. i. ii. Rule 26(b)(5) Privilege or work product Materials that are attorney-client privilege Work product in preparation of litigation objection 4. a. b. i. ii. Interrogatories (Rogs) Rule 33 Limited to 25 in number including subparts 30 days to respond Written answers by attorney and signed off by party 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. i. ii. 5. Contention interrogatories Identify every fact (or all Most courts will not allow early on Used to prove negative (to prove other side has no evidence of X) Exams Rule 35 evidence) that supports your contention that X Privilege log Must create a log of those items that are privileged, describe in general terms with

a. narrowly) b. c. d. 6. a. C. 1. a. b. c. d. e. f.

Parties or those in care, custody or control of party (read Must be in controversy Good cause shown Must have stipulation by parties or court order Request for admission (RFAs) Rule 36 Extension of pleadings Rule 26(b)(2)(iii) Undue burden Outweighs likely benefits Needs of case Amount in controversy Parties resources Importance of the issue at stake Importance of proposed discovery in resolving the issue SUMMARY JUDGMENT

Limitations on discovery

IV. Summary Judgment A. 1. B. 1. C. 1. 2. a. i. b. Rule 56(a) Claimant can move 20 days after commencement of action or Rule 56(b) Defending party can move for summary judgment at any time Rule 56(c) Motion must be served at least 10 days before hearing (most Standard Summary judgment shall be granted if moving party What is fact at issue and why is it material? Material if relevant to an element or affirmative defense Is there a genuine issue about it? courts require at least 21 days) makes showing that there is no genuine issue as to any material fact after opposing party moves for summary judgment

i.

Is it plausible that could come out either way? store? Material to whether there was a conspiracy D did not come up with enough evidence D cannot do nothing in moving for SJ, Adickes v. S.H. Kress & Co. Key fact Was there police officer in

to initiate 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 Point out there is no evidence (just Point to evidence in record to show moving partys burden state) D. 1. E. trial F. G. 1. Burden of persuasion Which party must convince trier of fact Party with burden of proof moves Every reasonable jury would conclude that it is more likely than not that moving party is right Rule 56(f) Not enough chance for discovery on issue (premature) Burden of production Whether party has sufficient evidence to go to lack of evidence

2. a. b.

Ex. Every reasonable jury would conclude that it is more likely Required to make initial showing Only if initial showing is strongly supported does opposing i. Burden of opposing party is to provide enough

than not that Jacques threw the rock

party have to respond 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. 1. 2. a. too easily Celotex Ambiguous which of two standard applies o Either merely point out that other side has no evidence o 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 Party who does not have burden of proof moves No reasonable jury would conclude that more likely than not that Ex. No reasonable jury would conclude that it is more likely Initial showing Logically would make sense not to party opposing summary judgment is right than not that Jacques threw the rock require initial showing, but if this were the case could be used as a weapon