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Civ Pro II Outline:

Simple Joinder:
Joinder: the union in one lawsuit of multiple parties who have the same rights or against whom rights
are claimed as co-plaintiffs or codefendants. The combination in one lawsuit of two or more claims, or
grounds for relief.

The ability to bring in multiple parties or multiple claims.

Two questions for determining joinder:
o Are the requirements of the applicable joinder rule satisfied?
If no, cant join
If yes, go on to Step 2
o Are the applicable jurisdictional requirements satisfied?
PJ, SMJ, maybe venue
If no, cant join

FRCP 18 Joinder of Claims:
FRCP 18(a): In General
o A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent
or alternative claims, as many claims as it has against an opposing party.

FRCP 18(b): Joinder of Contingent Claims
o A party may join two claims even though one of them is contingent on the disposition of the other;
but the court may grant relief only in accordance with the parties' relative substantive rights. In
particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is
fraudulent as to that plaintiff, without first obtaining a judgment for the money.

FRCP 18 Notes:
o Plaintiff uses FRCP 18
A party can bring all claims he has against another party, even if claims are unrelated.

Rule is permissive dont HAVE to bring all claims.

FRCP 18 is subject to other procedural rules:
Must be PJ over litigants, SMJ over claims.
May need to satisfy FRCP 13, 14, 15, e.g.

RULE: A party may bring as many claims as it has against an opposing party.

Most typically, joinder under this Rule is plaintiffs trying to join multiple claims.

Limitation comes in when we look to jurisdiction; the Rule itself creates NO limitations.

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FRCP 13 Cross-Claims & Counterclaims:
Compulsory Counter-Claims:
o In General:
A pleading must state as a counterclaim any claim that, at the time of its service, the pleader
has against an opposing party if the claim:
Arises out of the transaction or occurrence that is the subject matter of the opposing
party's claim, AND
Does not require adding another party over whom the court cannot acquire jurisdiction.

o Exceptions:
The pleader need not state the claim if:
When the action was commenced, the claim was the subject of another pending action; OR
The opposing party sued on its claim by attachment or other process that did not establish
personal jurisdiction over the pleader on that claim, and the pleader does not assert any
counterclaim under this rule.

Permissive Counterclaim:
o A pleading may state as a counterclaim against an opposing party any claim that is not
compulsory.

Relief Sought in a Counterclaim:
o A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may
request relief that exceeds in amount or differs in kind from the relief sought by the opposing
party.

Counterclaim Against the United States:
o These rules do not expand the right to assert a counterclaim, or to claim a credit, against the
United States or a United States officer or agency.

Counterclaim Maturing or Acquired After Pleading:
o The court may permit a party to file a supplemental pleading asserting a counterclaim that
matured or was acquired by the party after serving an earlier pleading.

Crossclaim Against a Co-Party:
o A pleading may state as a crossclaim any claim by one party against a co-party if the claim arises
out of the transaction or occurrence that is the subject matter of the original action or of a
counterclaim, or if the claim relates to any property that is the subject matter of the original
action. The crossclaim may include a claim that the co-party is or may be liable to the cross-
claimant for all or part of a claim asserted in the action against the cross-claimant.

Joining Additional Parties:
o FRCP 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

Separate Trials; Separate Judgments:
o If the court orders separate trials under FRCP 42(b), it may enter judgment on a counterclaim or
crossclaim under FRCP 54(b) when it has jurisdiction to do so, even if the opposing party's claims
have been dismissed or otherwise resolved.

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FRCP 13 Notes:
o Defendant uses FRCP 13
Counterclaims are asserted in defendants answer to the complaint.
If defendant fails to add a counterclaim in the answer, defendant may amend or seek leave to
amend to add the counterclaim under FRCP 15.

o Compulsory Counterclaims:
Arises from same transaction or occurrence that gave rise to plaintiffs complaint.
Must be asserted or it is waived
Exceptions:
Immature Claims
Lack of jurisdiction over 3
rd
parties
Pending lawsuits
Must satisfy requirements of SMJ, PJ, but not venue

o Permissive Counterclaims:
Does not arise from same transaction or occurrence that gave rise to Ps complaint, or falls into
one of exceptions noted in the prior slide.
Defendant can bring in same lawsuit or in separate action.
Must satisfy requirements of SMJ and PJ; split of authority on need to satisfy venue.

o Cross-Claims: FRCP 13(g)
Crossclaims are claims brought by and against persons on the same side of the litigation,
turning them into opponents.
Must arise out of same transaction or occurrence as original action.
Therefore, are always permissive.
Must satisfy requirements of SMJ and PJ, but not venue.
FRCP 13(a)(1):
At the time the answer is served, the time the counterclaim is asserted, the claim must be
available.
FRCP 13(a)(2)(A):
If the claim were already brought in another court, then the claim would not be considered
a compulsory counterclaim.

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Counterclaim Analysis:
Counterclaim: claim against an opposing party.

Logical Relationship Test:
o Determines whether counterclaim is compulsory or permissive.

o Look at the core of operative facts and determine whether the original lawsuit and the
counterclaim come out of the same transaction or occurrence (STO).
If YES: Compulsory (same STO).
If NO: Permissive (not same STO)

o Compulsory Counterclaim:
If you don't bring the claim in the original lawsuit then you lose it.

If compulsory, then there is no independent jurisdictional basis and the claim will be joined
under supplemental jurisdiction because it arises out of the same case or controversy (same core
of operative facts).

Since the claim is joined under supplemental jurisdiction it is held to the discretion of the court
under USC 1367(c).

o Permissive Counterclaim:
You can wait and bring the claim in a separate lawsuit.

If permissive, there is an independent basis for SMJ.

The claim must meet either:
Federal question or
Diversity jurisdiction.

If no SMJ, then supplemental jurisdiction may be available.

Crossclaim Analysis:
Crossclaim: claim against a co-party.

The claim must arise out of:
o The transaction or occurrence that is the subject matter of the original action or
o Of a counterclaim OR
o If the claim relates to any property that is the subject matter of the original action.

Same Transaction or Occurrence Test:
o Look at core of operative facts and determine whether the original lawsuit and the crossclaim
arise out of the STO or series of STO.
If YES, then crossclaim is proper.
If proper, then there is supplemental jurisdiction because the core of operative facts test is
met.
If NO, then crossclaim is not proper.

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o If there is no SMJ, the claim will be brought under supplemental jurisdiction and will be held to the
discretion of the court under USC 1367(c)

FRCP 20 Permissive Joinder of Parties:
Persons Who May Join or Be Joined:
o Plaintiffs:
Persons may join in one action as plaintiffs if:
They assert any right to relief jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of transactions or occurrences;
AND
Any question of law or fact common to all plaintiffs will arise in the action.

o Defendants:
Persons, as well as a vessel, cargo, or other property subject to admiralty process in rem, may
be joined in one action as defendants if:
Any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; AND
Any question of law or fact common to all defendants will arise in the action.

o Extent of Relief:
Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the
relief demanded. The court may grant judgment to one or more plaintiffs according to their
rights, and against one or more defendants according to their liabilities.

Protective Measures:
o The court may issue orders, including an order for separate trials, to protect a party against
embarrassment, delay, expense, or other prejudice that arises from including a person against
whom the party asserts no claim and who asserts no claim against the party.
Plaintiffs may join in one action as plaintiffs if:
They assert a right arising out of the same transaction, occurrence, or series of transaction
or occurrences; AND
Any question of law or fact common to all plaintiffs will arise in the action.

When FRCP 20 is met, MUST STILL ASK IF THERE IS SMJ!
If there is no SMJ, see if it can be joined under supplemental jurisdiction.

28 USC 1367(b): When supplemental anchor claim is based solely on diversity, the courts
won't have supplemental jurisdiction over claims by plaintiffs against persons made parties
under FRCP 14, 19, 20, or 24 OR by plaintiffs joined under FRCP 19 OR seeking to intervene as
plaintiffs under FRCP 24, when exercising jurisdiction would be inconsistent with the
jurisdictional requirements of section 1326.
If one plaintiff meets amount in controversy and there are multiple claims against the
defendant, as long as there is complete diversity, the claims that do not meet the amount in
controversy requirement will be allowed to join under supplemental jurisdiction.
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FRCP 14 Third-Party Practice (Impleader):
When a Defending Party May Bring in a Third Party:
o Timing of the Summons and Complaint:
A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty
who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff
must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days
after serving its original answer.

o Third Party Defendant's Claims and Defenses:
The person served with the summons and third-party complaint, the "third-party defendant":
Must assert any defense against the third-party plaintiff's claim under FRCP 12;
Must assert any counterclaim against the third-party plaintiff under FRCP 13(a), and may
assert any counterclaim against the third-party plaintiff under FRCP 13(b) or any
crossclaim against another third-party defendant under FRCP 13(g);
May assert against the plaintiff any defense that the third-party plaintiff has to the
plaintiff's claim; AND
May also assert against the plaintiff any claim arising out of the transaction or occurrence
that is the subject matter of the plaintiff's claim against the third-party plaintiff.

o Plaintiff's Claims Against a Third-Party Defendant:
Plaintiff may assert against the third-party defendant any claim arising out of the transaction
or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.

The third-party defendant must then assert any defense under FRCP 12 and any counterclaim
under FRCP 13(a), and may assert any counterclaim under FRCP 13(b) or any crossclaim
under FRCP 13(g).

o Motion to Strike, Sever, or Try Separately:
Any party may move to strike the third-party claim, to sever it, or to try it separately.

o Third-Party Defendant's Claim Against a Nonparty:
A third-party defendant may proceed under this rule against a nonparty who is or may be
liable to the third-party defendant for all or part of any claim against it.

o Third-Party Complaint in Rem:
If it is within the admiralty or maritime jurisdiction, a third-party complaint may be in rem.
In that event, a reference in this rule to the summons includes the warrant of arrest, and a
reference to the defendant or third-party plaintiff includes, when appropriate, a person
who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.

When a Plaintiff May Bring in a Third Party:
o When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule
would allow a defendant to do so.

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Admiralty or Maritime Claim:
o Scope of Impleader:
If a plaintiff asserts an admiralty or maritime claims under FRCP 9(h), the defendant or a
person who asserts a right under Supplemental Rule C(6)(a)(i) may, as a third-party plaintiff,
bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to
the third-party plaintiff, for remedy over, contribution, or otherwise on account of the same
transaction, occurrence, or series of transactions or occurrences.

o Defending Against a Demand for Judgment for the Plaintiff:
The third-party plaintiff may demand judgment in the plaintiff's favor against the third-party
defendant.
In that event, the third-party defendant must defend under FRCP 12 against the plaintiff's
claim as well as the third-party plaintiff's claim; and the action proceeds as if the plaintiff
had sued both the third-party defendant and the third-party plaintiff.

FRCP 14 Notes:
o Authorizes a defending party to bring a third party defendant in the suit.

o A defendant may properly bring in a third party defendant when they are or may be liable to the
defendant for all or part of the claim against it.

o Requires that the claim by the defendant be a claim of derivative liability.
If I as defendant have a liability to the plaintiff, then third party defendant has an obligation
under a separate legal relationship between us to pay me some or all of what I have had to pay
to the plaintiff.

o FRCP 14(a)(2):
Third party defendant can defend on the claim using any defense under FRCP 12 OR raise
defenses in the original case of plaintiff v. defendant.
If they release liability between the plaintiff and defendant in the original case then, by
definition, the third party defendant cannot be liable.
Third party defendant CANNOT be liable if the original defendant is not liable.

o FRCP 14(b):
A plaintiff can bring in a third party defendant as long as they are using derivative liability and
are in a defending position (counterclaim by defendant, crossclaim by another plaintiff, etc.).

o If FRCP 14 authorizes the impleader, the third party still has to be subjected to PJ and SMJ in the
court where the action is pending.

o 28 USC 1367(b):
DOES NOT disallow claims by defendant's seeking to use supplemental jurisdiction based
solely on diversity.

o FRCP 4(k)(1)(A):
PJ of the federal court is where the party is subject to general jurisdiction.

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o FRCP 4(k)(1)(B):
If the third party defendant can be served within 100 miles of the courthouse where the action
is pending then the court will have jurisdiction even if they would not meet the long-arm
statute or the 14
th
amendment or have sufficient minimum contacts.

FRCP 19 Required Joinder of Parties:
Persons Required to Be Joined if Feasible:
o Required Party:
A person who is subject to service of process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:
In that person's absence, the court cannot accord complete relief among existing parties; or
That person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person's absence may:
o As a practical matter impair or impede the person's ability to protect the interest; or
o Leave an existing party subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of the interest.

o Joinder by Court Order:
If a person has not been joined as required, the court must order that the person be made a
party.
A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case,
an involuntary plaintiff.

o Venue:
If a joined party objects to venue and the joinder would make venue improper, the court must
dismiss that party.

When Joinder Is Not Feasible:
o If a person who is required to be joined if feasible cannot be joined, the court must determine
whether, in equity and good conscience, the action should proceed among the existing parties or
should be dismissed.

o The factors for the court to consider include:
The extent to which a judgment rendered in the person's absence might prejudice that person
or the existing parties;

The extent to which any prejudice could be lessened or avoided by:
Protective provisions in the judgment;
Shaping the relief; or
Other measures

Whether a judgment rendered in the person's absence would be adequate; and

Whether the plaintiff would have an adequate remedy if the action were dismissed for
nonjoinder.

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Pleading the Reasons for Nonjoinder:
o When asserting a claim for relief, a party must state:
The name, if known, of any person who is required to be joined if feasible but is not joined; and
The reasons for not joining that person.
Exception for Class Actions:
o This rule is subject to FRCP 23.

FRCP 19 Notes:
o MUST be joined, not MAY be joined like FRCP 20.

o Rule states that you cannot leave out a party who could be joined in this case if their absence
would create any of the 3 problems identified in the Rule.

o FRCP 19(1)(A):
If we go forward with the lawsuit as structured, in the absence of the party, complete relief
cannot be afforded between the parties, then the party MUST BE JOINED IF FEASIBLE.
EX: if there are undivided ownership rights in a piece of property then all the owners must
be involved in the suit, can't give complete relief to one owner if there is undivided
ownership rights by others b. protects P and the system.

o FRCP 19(a)(1)(B)(i):
If the absentee claims interest in the subject matter in the suit and is so situated that judgment
without the party as a practical matter impairs or impedes the person's ability to protect their
interest the party MUST BE JOINED IF FEASIBLE.

Protects the outsider to the lawsuit.

o FRCP 19(a)(1)(B)(ii):
If the absentee claims interest in the subject matter in the suit and is so situated that judgment
without the party leaves an existing party subject to substantial risk of incurring double,
multiple, or otherwise inconsistent obligations because of the interest then the party MUST BE
JOINED IF FEASIBLE.
Protects the defendant.

If any one of those 3 problems occur, THEN must determine is joinder is feasible.
Whether there is PJ or SMJ?

If joinder IS FEASIBLE, then the court will order the party to be joined.

o FRCP 19(b):
If joinder is not feasible "indispensable party.
If the party is so indispensable that, given their absence because they couldn't be joined
under PJ or SMJ (not feasible), should the action be allowed to continue anyway OR should
the action be dismissed because they can't be joined?
o Court must determine, in equity and good conscience.

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o FRCP 19(b)(1-4):
Factors for determining whether a party is indispensable a. extent of prejudice against
absentee or existing parties (how bad is the problem identified under FRCP 19(a)?)

Extent to which prejudice can be lessened or avoided by:
Protective provisions in the judgment, shaping the relief OR other measures.
Whether judgment would be adequate.
Whether plaintiff would have adequate remedy if action were dismissed (alternative
forum, etc.)

Once a proper FRCP 14 claim is done, FRCP 18 kicks in and you can join additional claims BUT
the first claim must meet FRCP 13(g) or FRCP 14 AND MUST STILL MEET SMJ.

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FRCP 24 Intervention:
Intervention of Right:
o On timely motion, the court must permit anyone to intervene who:
Is given an unconditional right to intervene by a federal statute; or
Claims an interest relating to the property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing parties adequately represent that
interest.

Permissive Intervention:
o On timely motion, the court may permit anyone to intervene who:
Is given a conditional right to intervene by a federal statute; or
Has a claim or defense that shares with the main action a common question of law or fact.

o By a Government Officer or Agency:
On timely motion, the court may permit a federal or state governmental officer or agency to
intervene if a party's claim or defense is based on:
A statute or executive order administered by the officer or agency; or
Any regulation, order, requirement, or agreement issued made under the statute or
executive order.

o Delay or Prejudice:
In exercising its discretion, the court must consider whether the intervention will unduly delay
or prejudice the adjudication of the original parties' rights.

Notice and Pleading Required:
o A motion to intervene must be served on the parties as provided in Rule.

o The motion must state the grounds for intervention and be accompanied by a pleading that sets
out the claim or defense for which intervention is sought.

FRCP 24 Notes:
o FRCP 24(a):
The court MUST allow the party to intervene, there is very little limitation.
If the court goes forward without the absent party, they may have an interest harmed by
the judgment.

MUST intervene in a timely motion, timeliness is determined by:
o How long the lawsuit has been going on.
o If the party knew their interest could be impaired and how long they knew.

Intervening party must show that a party in the suit does not already adequately represent
their interest.

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o FRCP 24(b):
The court MAY permit a party to intervene, completely discretionary.
Function of efficiency.

If there is an overlap regarding claims and defenses that are already in the lawsuit, it would
be efficient to solve them all in one lawsuit.

BUT WILL NOT ALLOW to the detriment of the existing parties:
o If it would result in undue delay it will hurt plaintiff and won't be allowed.
o Will not allow if there is anyway it will impair how the suit will go forward by the
plaintiff OR defendant.

o FRCP 24(c):
Motion must state grounds for intervention AND a pleading that sets out the claim or defense
for which intervention is sought.
If intervening as plaintiff, motion would be accompanied by proposed complaint.
If intervening as defendant, motion would be the answer.

FRCP 22 Interpleader:
Grounds
o By a Plaintiff:
Persons with claims that may expose a plaintiff to double or multiple liability may be joined as
defendants and required to interplead. Joinder for interpleader is proper even though:
The claims of the several claimants, or the titles on which their claims depend, lack a
common origin or are adverse and independent rather than identical; or
The plaintiff denies liability in whole or in part to any or all of the claimants

o By a Defendant:
A defendant exposed to similar liability may seek interpleader through a crossclaim or
counterclaim.

Relation to Other Rules and Statutes:
o This rule supplements, and does not limit, the joinder of parties allowed by FRCP 20.

o The remedy this rule provides is in addition to, and does not supersede or limit, the remedy
provided by 28 USC 1335, 1397, and 2361.
An action under those statutes must be conducted under these rules.

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FRCP 22 Notes:
o In the language of interpleader, the pool of money is called the stake.
o The person in possession of the pool of money is called the stakeholder.
The stakeholder is the one who uses interpleader.

o STEP ONE:
Is interpleader appropriate?
Are there multiple adverse claims to the stake?
Is there a possibility of double or multiple liabilities?
If appropriate then go to step two.

o STEP TWO:
Determine the stake.

o STEP THREE:
Determine the stakeholder, the person in possession of the stake.
Determine whether the stakeholder themselves have a claim to the stake
o IF THEY DO HAVE A CLAIM, then they are an interested stakeholder.
IF THEY ARE, then they are a claimant as well.

o IF THEY ARE NOT, they are a disinterested stakeholder and they are released from the
suit and do not have to be involved, they turn the stake over to the court and the court
handles the stake.

o STEP FOUR:
Identify the claimants to the stake.
If used in federal court THEN we must determine which form of the device is available, FRCP
22 or Statutory, usually based on SMJ requirements

o STEP FIVE:
Litigation on the merits, go forward with the litigation and determine who should get the stake.

INTERPLEADER
Issue "Statutory" Interpleader "Rule" Interpleader
Federal
SMJ
Minimal diversity 28 USC 1335, determined
between claimant's, at least 1 claimant must be
diverse from another claimant and $500 or more
Complete diversity 28 USC 1332,
determined between stakeholder and
all claimants and in excess of $75K
PJ Nationwide SOP: as long as you can serve
claimant within a judicial district in US they will
be subject to PJ where the suit is being brought
Ordinary jurisdiction rules, FRCP
4(k)(1)(A), contacts with claimants
required.
Venue Judicial district where any claimant resides. Ordinary venue rules, 28 USC 1391.
Injunction Statutory authorized injunctions against other
suits must show that statutory interpleader is
appropriate and injunction will be given.
Anti-Injunction Act, prohibited from
enjoining state court actions unless
you can show injunction is necessary
in aiding court's jurisdiction.
Depositing
The Stake
With Court
Required, part of establishing 28 USC 1335 SMJ,
prerequisite to establishing and hearing
interpleader action.
No requirement, equitable power,
usually used when stakeholder is
disinterested.

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FRCP 23 Class Actions:
Class actions are representative litigations:
o The people designated as the clients, the class representatives, are going to represent the interests
of everyone else in that class. Their decisions will effect how the rest of the class's rights are
presented in the class action suit.
BEFORE determining FRCP 23(a)(1) and (2) you must identify the class.
BEFORE determining FRCP 23(a)(3) and (4) you must identify the class representatives.

FRCP 23(a):
o Prerequisites that have to be met for a class action to potentially be certified:
FRCP 23(a)(1): Numerosity
It would not otherwise be practical to join all the parties, not just numbers BUT numbers
are important.

FRCP 23(a)(2): Commonality
Requires that ALL of the class share common questions of law or fact.

FRCP 23(a)(3): Typicality
Looks at the class representatives claims and defenses.
o Make sure that the representatives are standing in the same shoes as the rest of the
class.

FRCP 23(a)(4): Adequacy of Representation
Looks at the class representatives AND the attorneys.
Make sure attorneys have experience in the subject area and have experience in doing large
class action suits.

o AFTER SATISFYING ALL FOUR of the FRCP 23(a) prerequisites, then the class must fit in one of the
FRCP 23(b) types of class actions:
FRCP 23(b)(1)(A):
If separate actions would establish incompatible standards of conduct for the opposing
party.
o EX: 2 separate suits against a city for issuing a bond, both win, one for the bond and
one against it. This would be an incompatible standard of conduct. By bringing the
actions in a class action with 2 different subsets of classes, the judgment for or against
the bond would be binding on everyone in the action.

FRCP 23(b)(1)(B):
If separate actions, as a practical matter, may impair or impede those not parties and the
ability to protect their interests.
o EX: allows 100,000 injured parties to be represented in a class action suit and the $5
million will be distributed throughout the class, instead of bringing separate suits and
only the first 100 plaintiffs getting any money remedies before the company goes
bankrupt.

FRCP 23(b)(2):
Injunctive or declaratory relief.
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FRCP 23(b)(3): Common Question Class Actions
Predominance:
o Must have a common question of law or fact of class members that predominates over
any questions affecting only individual members AND

Superiority:
o Class action must be superior to other available methods for fairly and efficiently
adjudicating the controversy.

Matters pertinent to these findings include:
FRCP 23(b)(3)(A):
o Class members interests in individually controlling the prosecution or defense of
separate actions.

FRCP 23(b)(3)(B):
o Extent and nature of any litigation concerning the controversy already begun

FRCP 23(b)(3)(C):
o Having all the members of the class from around the country would be better to use this
rule to resolve it all at once.

FRCP 23(b)(3)(D):
o Manageability, difficulties in managing a class action.

o FRCP 23(c)(2)(B):
For FRCP 23(b)(3) cases, representatives have an obligation of actual notice to all individuals
and those individuals must have the option to opt out of the class action, therefore not binding
them to the judgment of the class action.

o FRCP 23(c)(2)(B)(i-vii):
The notice must clearly and concisely state in plain, easily understood language:
The nature of the language
The definition of the class certified
The class claims, issues, or defenses
That a class member may enter an appearance through an attorney if the member so
desires
That the court will exclude from the class any member who requests exclusion
The time and manner for requesting exclusion AND
The binding effect of a class judgment on members under FRCP 23(c)(3)

o If certification is DENIED:
The case usually goes away because the members aren't willing to bring the individual claims
because they are so small.

o If certification is ACCEPTED:
It usually results in a settlement

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o FRCP 23(f):
Allows party to attempt to appeal a decision to certify or not certify a class.
It is up to the discretion of the court to allow that appeal
Must be filed within 14 days after the order is entered.
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Res Judicata/Claim Preclusion
U.S. Constitution Article IV Section 1: Full Faith and Credit
o Full faith and credit shall be given in each State to the public acts, records and judicial proceedings
of every other state. And the Congress may by general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and the effect thereof.

1738 State and Territorial statutes and judicial proceedings; full faith and credit
o The Acts of the legislature of any State, Territory, or Possession of the United States, or copies
thereof, shall be authenticated by affixing the seal of such State, Territory, or Possession thereto.

o The records and judicial proceedings of any court of any such State, Territory or Possession, or
copies thereof, shall be proved or admitted in other courts within the United States and its
Territories and Possession by the attestation of the clerk and seal of the court annexed, if a seal
exists, together with a certificate of a judge of the court that the said attestation is in proper form.

o Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the
same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such State, Territory or Possession from
which they are taken.

Applies when we look at a prior judgment and we say that the judgment precludes a party from
bringing a subsequent lawsuit.

Compulsory counterclaim based on preclusion, if you don't use it, you lose it.

When precluding a claim, the entire lawsuit is precluded.

The claim should have been brought in a prior action and wasn't, therefore the claim can no longer be
brought in another suit.

Depending on the jurisdiction that renders a judgment, the claim preclusive effect can be different in a
subsequent lawsuit.
o Different jurisdictions are going to apply different tests or different definitions of the prior claim

If the 2
nd
court is in a different jurisdiction, Section 1738 of the Constitution requires sister states to
give full faith and credit to the judgment of the courts of the sister states.

If you had a court available to you where you could have brought both claims but you instead went to
a court of limited jurisdiction, then there are some states where they will preclude you because you
had an option available to bring both claims but didn't.

Any defenses that should have been brought in the 1
st
action have to be brought in the 1
st
action.

Judgments entitled to preclusive effect:
o Full jury trial
o Judgment as a matter of law
o Summary judgment
o Federal law 12(b)(6) dismissal

18
Requirements for Claim Preclusion:
o Same claim in 2
nd
suit as in the 1
st
suit (FRCP 13 and 18)
Doesn't have to be "identical"
Includes claims that SHOULD HAVE been brought in the 1
st
action
What claims SHOULD HAVE been brought as part of the same lawsuit
Transactional definition (notice pleading):
o Determine the underlying transaction that gave rise to the original claim and compare it
to the transaction that gave rise to the 2
nd
suit (time, space, origin, motivation), is it the
same core of operative facts?

Same evidence definition (fact pleading):
o Would the same evidence be used to prove the 2
nd
claim as would be used to prove the
1
st
claim?
Looks at the facts of each element being brought in the suit.

Also includes claims that COULD HAVE been brought in the 1
st
action.
If you COULD NOT have brought the claim in the 1
st
action then the claim will not be
precluded from being brought in a 2
nd
suit.

Also includes DEFENSE and COMPULSORY COUNTERCLAIMS and if the 2
nd
claim would
NEGATE THE RIGHTS that the 1
st
judgment established.

o Same parties in 2
nd
suit as in the 1
st
suit OR parties in privity with parties to the 1
st
suit (FRCP 19
and 20):
Privity: identical legal rights.
The person in the 1st suit has to be so identified with the interest of another that he
represents the same legal right as the person in the 2
nd
suit is trying to present.

Circumstances where privity makes it so we can bind someone to a judgment even though
they were not formally joined as a party themselves:
o Agreement by the parties to be bound by a prior action.
o Preexisting "substantive legal relationships"
Such as preceding and succeeding owners of property.
o Adequate representation by someone with the same interests who was a party.
Such as trustees, guardians, or other fiduciaries.
o A party "assuming control" over prior litigation.
o Party who loses an individual suit then suing again, this time as the representative of a
class.
o Special statutory schemes such as bankruptcy and probate proceedings, provided those
proceedings comport with due process.

Mutuality

Final judgment "on the merits"
Judgment whereby there is nothing left to do but execute that judgment
19
Collateral Estoppel/Issue Preclusion:
Does not bar the litigation of the entire claim, it bars the party from relitigating an issue on which it
has already litigated and lost.

The opportunity to have raised an issue is not enough, the issue had to HAVE BEEN LITIGATED.

When issue preclusion is raised with the same parties, 1st issue to address is WHETHER THERE IS
CLAIM PRECLUSION.

If a party admits things in 1
st
lawsuit they are not bound by those admissions in another suit because
they were not litigated.

Alternative Bases:
o If one of the determinations could be taken away and the suit would still end in the same way,
then they are alternatives
EX: Judge finds both no damages AND contributory negligence (alternative bases)
If you cover one finding can you still get the same result?
What preclusive effect should be given to the alternative bases?
o Under First Restatement they would all be given preclusive effect.
o Under Second Restatement none would be given preclusive effect UNLESS the issue
was appealed and affirmed on appeal.

4 Types of Issue Preclusion
o Mutual Offensive: same parties or parties in privity AND plaintiff trying to estop defendant.

o Mutual Defensive: same parties or parties in privity AND defendant trying to estop plaintiff.

o Non-Mutual Offensive: can ONLY be used against a party or in privity with a party, can't be used
against a stranger AND plaintiff trying to estop defendant.

o Non-Mutual Defensive: defendant trying to estop plaintiff.
EX: plaintiff sues defendant in 3-car accident. Plaintiff hires lawyer who does a bad job and
loses the case. Passenger in the other car didn't want to be part of the lawsuit with that lawyer,
so they hire a better one. They should not be stuck with the result of the bad lawyer without
having their day in court.
Non-mutual because the passenger is a stranger to the 1st suit against the original
defendant.

20
Requirements for Issue Preclusion:
o Same issue in 2
nd
suit as in the 1
st
.
Had to have been actually litigated AND
Determined

o Must have valid final judgment in 1st suit

o Determination of the issue was essential to the prior judgment
Essential: necessary to determine the prior judgment.

Can you reach the result without the finding?
If so, then it is NOT ESSENTIAL.

If Federal court dismisses case on PJ grounds, the PJ has already been litigated and determined
and the plaintiff would not be able to file in state court because it would be dismissed on issue
preclusion on the PJ issue.

How to determine whether a state court has to dismiss a case on lack of jurisdiction grounds if
Federal court dismissed on both PJ and SMJ:
Determine whether the court follows the 1
st
or 2
nd
Restatement approach:
o If First Restatement, then all precluded, dismiss case.

o If Second Restatement, check to see if there were appeals
IF NO APPEALS, no preclusive effect
IF THERE WERE APPEALS, were they affirmed?
IF YES, then there is preclusive effect

o Determination of parties against who issue preclusion can be used.
If any of these 4 requirements is not met, there is no issue preclusion.

If ALL 4 are satisfied, then we look to the discretion of the court:
Did the party against whom preclusion is being invoked have a Full and Fair Opportunity to
litigate?
Full and Fair Opportunity to litigate the issue
Could party invoking issue preclusion have feasibly joined the 1st suit?
o Court will look at why the person wasn't in the 1
st
suit; if there was a
problem with the person joining in the 1
st
suit.
o Incentive to litigate issue in 1st suit has to be greater than or equal to that of
the 2
nd
suit.
o Procedural opportunities available in the 2
nd
suit that were not available in
the 1
st
suit that could really lead to a different result.
o Prior inconsistent judgments make sure that there are no inconsistencies
with the judgment that the party invoking is trying to use.

o If the court believes it is fair, then issue preclusion will apply.

21
Discovery:

Discoverable Material:
o FRCP 26(b) describes what may be discovered under the federal rules.
Unless discovery has been otherwise limited by a protective order of the court, a party may
discover any matter that is:
Relevant to a claim or defense;
Reasonably calculated to lead to discovery of admissible evidence;
Not privileged;
Not constituting work product (A special showing is required for discovery of work product
prepared or acquired in anticipation of litigation or for trial.)

Discovery may include:
Information Already In The Discoverers Possession:
o Even when the discoverer already knows or possesses certain information, he is
entitled to discover it from his adversary.

Impeachment Material:
o Discovery includes material that may impeach an opponents witnesses.

Opinions & Contentions:
o Discovery is not limited to facts, but may also include opinions held by non-experts and
contentions regarding the facts or the application of law to the facts.

Insurance agreements:
o FRCP 26(a)(1) expressly requires disclosure of insurance agreements available to
satisfy any or all of any judgment, even though they remain inadmissible at trial.

Questionable Areas of Discovery:
o Financial Information:
Unless the amount of a partys assets is itself a relevant issue in the case, as it would be in an
action to enforce a money judgment or in an action for punitive damages measured by the
amount of the assets, discovery of assets other than insurance, and of related information such
as tax returns and bank statements, may be beyond the scope of discovery.

Even when assets are relevant and discoverable, privacy concerns may warrant postponing
discovery until the discoveree has had an opportunity to contest the claim to which the assets
are relevant.

o Electronic Information
FRCP 26(b)(2) is silent about information stored in electronic form.
In fact, the discovery rules generally appear to be document-oriented.

Nevertheless, courts have almost universally interpreted FRCP 34 to allow discovery of
electronic information if it is relevant and non-privileged.

22
Privileged Communications:
o The attorney-client, doctor-patient, priest-penitent, interspousal privilege and the privilege
against self-incrimination are commonly recognized privileges.

o In order to prove that a communication is privileged, the party claiming privilege must show that
such communication:
Was made with an expectation of confidentiality;

Is essential to a socially approved relationship or purpose; and

Has not been waived by disclosure of the contents of the communications to persons outside the
relationship.

o Privileges are narrowly construed in order to minimize their effect on liberal disclosure.
The proponent of a privilege has the burden of establishing its existence. [FRCP 26(b)(5)]

Work Product:
o General Rule:
Work product, generally defined as information prepared or obtained in anticipation of
litigation or preparation for trial by or for a party or his representative, enjoys a qualified
immunity under FRCP 26(b)(3).

The Rule authorizes discovery of work product in the form of documents and tangible things
only upon a showing that the party seeking discovery:
Has substantial need of the materials in the preparation of his case, and
Is unable without due hardship to obtain the equivalent of such materials by other means.

o The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v. Taylor, in which
SCOTUS recognized a common law qualified immunity of work product from discovery.
In Hickman, SCOTUS stated that when the discoverer of work product shows that production is
essential to preparation of his case and that denial of discovery would cause hardship because
witnesses are no longer available or can be reached only with difficulty, production of relevant
and non- privileged facts in an attorneys file should be allowed.

FRCP 26(b)(3): Work Product Privilege/Trial Preparation
Certain material is off-limits and the only way to get is if:
o Theres a substantial need;
o The information is not otherwise available.

The goal of this rule is:
o Protection of the individuals privacy and attorneys legal conclusions, thoughts,
mental impressions, theories;

o Preventing free-riders by discouraging opposing counsel from not doing any work and
then relying on the other counsel;

o Alternatives could be used such as interrogatories, etc.

23
o Prepared in Anticipation of Litigation or for Trial:
Immunity is limited by FRCP 26(b)(3) to materials prepared in anticipation of litigation or for
trial.
Most courts add that the primary purpose of preparing the documents must have been to
assist in such litigation.
o Thus, documents prepared for:
Ordinary business purposes (e.g., a routine accident report),

Public regulatory requirements (e.g., statutorily- required report to police of
automobile accidents involving injuries), or

Other non-litigation purposes (e.g., self-evaluation) fall outside the Rule.

o Documents and Tangible Things:
SCOTUS emphasized in Hickman that although the written witness statements and the
attorneys memoranda were not discoverable on a bare demand, the discoverer was free to
obtain the facts gleaned by discovery.
The qualified immunity for work product does not protect against discovery of facts which
may be construed as intangible things contained in the work product, including the identity
of fact witnesses or the existence of the protected documents and things.
o However, federal courts have ruled that the discoveree may not be compelled to reveal
facts to the extent that he is essentially recreating the protected document for the
discoverer.

Although witness statements qualify as work product, FRCP 26(b)(3) expressly provides that a
party or witness may on demand obtain a copy of his own substantially verbatim statement
concerning the subject matter of the action.

o Partys Representative:
As used in FRCP 26(b)(3), representative includes a partys attorney, consultant, surety,
indemnitor, insurer, or agent.

o Undue Hardship:
Hickman demonstrates that the undue hardship requirement may be satisfied when important
facts are exclusively in the control of the discoveree such that the party-seeking discovery has
no other reasonable access to the information. For example, undue hardship may exist where:
A witnesss death, moved beyond the reach of compulsory process, lost his memory,
deviated from his prior testimony or refused to cooperate; or

Evidence that has physically disappeared or been altered is reflected in work product, such
as photographs of skid marks or conditions at the scene of an accident.

o Opinion Work Product
FRCP 26(b)(3) provides what appears to be an absolute immunity for opinion work product,
defined as:
Mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.

24
Experts:
o FRCP 26 differentiates between experts expected to testify at trial (testifying experts) and those
merely retained or specially employed in anticipation of trial who are not, however, expected to
testify (non-testifying experts).
FRCP 26(a)(2) requires disclosure of the identity and expected testimony of the testifying
experts and FRCP 26(b)(4)(A) permits their depositions.

FRCP 26(b)(4) conditionally protects the non-testifying experts from discovery absent a special
showing.

o Excluded from the Rules protection is any expert who acquires his information directly as either a
participant or observer about the transactions or occurrences underlying the lawsuit.
In such circumstances, the expert is in fact an ordinary fact witness.
Example: a police officer who responds to the accident scene, a doctor who attends in the
emergency room, a mechanic who services the car whose brakes failed.

Mechanics of Discovery:
o Mandatory Discovery Conference and Discovery Plans:
FRCP 26(f) requires parties to a lawsuit to confer as soon as practicable to discuss the case and
possibilities for settlement, to arrange for required disclosures, and to develop a discovery
plan incorporating these and other agreements for subsequent discovery.

FRCP 26(d) precludes discovery prior to such conference.

25
o Required Disclosures
FRCP 26(a) mandates three types of discovery that must be automatically produced regardless
of discovery request:
Initial disclosures of basic information;
Disclosures of expert testimony; and
Pretrial disclosures of trial evidence.

A party who without substantial justification fails to disclose material subject to required
disclosure is precluded under FRCP 37(c)(1) from introducing the material at trial.
Initial Disclosures:
o Basic information covered by FRCP 26(a)(1) includes:
The identity of possible fact witnesses that may be called at trial;

Identification of documents and other tangible items in the possession, custody or
control of a party, that the disclosing party may use to support its claim or
defenses,

Computation of damages claimed, making available for inspection and copying
evidentiary material, not privileged or protected from disclosure, on which such
computation is based, including materials bearing on the nature and extent of
injuries suffered.

Insurance policies that may be used to satisfy part or all of a judgment.

o Excluded from FRCP 26(a)(1) are:
Witnesses and documents that will either be used solely for impeachment or will
not be used at trial.

FRCP 26(a)(3): Pretrial Disclosures
o In addition to the required disclosure of expert witness testimony, the parties must
exchange lists of trial witnesses and trial exhibits at least 30 days before trial.

o Supplementation of Discovery:
Under FRCP 26(c) and FRCP 26(e), a party must ensure the continued accuracy of the following
types of discovery throughout the lawsuit:
Automatic discovery required by FRCP 26(a);
Disclosures made by expert witnesses that are to testify at trial; and
Responses to an interrogatory, request for production, or request for admission.

If such discovery becomes incomplete or inaccurate, the party or his attorney must provide
additional or corrective information to the opponent, if not already known by the opponent.
A common sanction for breach of the duty to supplement is exclusion at trial of evidence
withheld by the discoveree.
o This sanction is inappropriate, however, if a continuance and opportunity for mid-trial
discovery can enable the discoverer to overcome his surprise and prepare effective
cross-examination and rebuttal.

26
Depositions:
o Procedure For Taking:
To depose a party or non-party witness, FRCP 30 requires:
Reasonable written notice to the deponent and all parties to the action of the time and
place of the deposition and identity of the deponent.
o A party must comply with the notice or else seek a protective order because, by the
initial service of process on him, he is already under the personal jurisdiction of the
court.
Thus, no subpoena is required to compel the attendance of a party-deponent but
may be used to compel an uncooperative non-party deponent.

If documents to be used in conjunction with the deposition are sought, the deposing party
must attach to the deposition notice:
A FRCP 34 request for production of documents for a party-deponent

A subpoena duces tecum for a non-party.
o Under FRCP 30(b)(6), a party may name as a deponent in his notice and subpoena a
corporation, agency, partnership or other legal entity and describe the matters on
which examination is requested.
The entity must then designate one or more officers, directors, managing agents or
other persons with relevant knowledge to testify on its behalf.

o Use of Depositions at Trial:
Under FRCP 32(a) any or all of a deposition may be used at trial, as if the witness were then
present and testifying against any party who had notice of the deposition and a reasonable
opportunity to obtain counsel or to move for a protective order.
FRCP 32(a) permits the use of deposition testimony to impeach or contradict the deponent
as a witness, or as an admission of an adverse party or officer, director, managing agent or
designated deponent of an adverse party.
o In addition, FRCP 32(a) permits the use of deposition testimony at trial when the
deponent is unavailable because of death, illness, age, imprisonment or is beyond the
reach of process.
However, FRCP 32 only overcomes the initial hearsay hurdle to the use of a
deposition, which must otherwise be admissible under the rules of evidence.

o Interrogatories
Interrogatories: written questions directed to a party, who must answer them in writing and
under oath, or object with particularity.
Interrogatories target not just what the discoveree knows, but also what is reasonably
obtainable by the discoveree, the collective knowledge of the recipient.
o A party is charged with knowledge of what his agents know, or what is in records
available to him, or even, for purposes of FRCP 33, what others have told him on which
he intends to rely in his suit.

FRCP 33(a) limits the number of questions (taking into account discrete subparts of questions)
that can be posed to another party to 25, unless otherwise stipulated to by the parties or
ordered by the court.

27
Production and Entry Requests:
o FRCP 34(a) authorizes the discoverer to request that a party produce and permit:
Inspection and copying of documents;
Copying, testing or sampling of things; or
Entry upon land.

o A FRCP 34 request must designate the documents, things or land with reasonable particularity and
specify the time, place and manner of production or entry.

o A FRCP 34 production request embraces not only that which is in the possession of the discoveree
but also documents and property within her custody or control.

Physical and Mental Examinations:
o When the physical or mental condition of a party (or person in the custody or legal control of a
party) is in controversy, a court may on motion and for good cause shown order the party or
person to undergo a physical or mental examination under FRCP 35.
FRCP 35(b) establishes a rule of reciprocity for the exchange of examination reports.
The examinee is entitled to the report of the examination upon request.

In exchange, the examinee must produce any prior reports of examinations of the same
condition, and waives any privilege he has regarding the testimony of anyone who has or
will examine him concerning that condition.

Requests for Admissions:
o FRCP 36 provides a mechanism by which a party may request his adversary to admit the truth of
any matters within the scope of discovery.
An admission obtained under FRCP 36 conclusively establishes such matter and is binding at
trial.

Admissions may be withdrawn or amended with leave of court pursuant to FRCP 36(b) if it will
subserve the presentation of the merits and the party who requested the admission is unable
to show prejudice from the amendment.

o If a party on whom a request for admissions is served cannot admit to the truth of the matter
asserted therein, the party can alternatively:
Deny the truth of a requested admission;

Object on the ground that the request exceeds the permissible scope of discovery;

Seek a protective order for any of the reasons listed in FRCP 26(c);

Admit part and deny the balance;

Qualify his/her admissions and denials as necessary; or

State that after reasonable inquiry the information available to him is insufficient to enable
him to admit or deny.

28
Preventing Abuse of Discovery:
o Certification Requirements:
FRCP 26(g) imposes two different kinds of certification requirements on discovery initiatives.
It requires an attorney or unrepresented party to certify to knowledge, information or
belief, formed after reasonable inquiry, that a disclosure under FRCP 26(a)(1) or FRCP
26(a)(3) is complete and correct as of the time it is made.

In addition, FRCP 26(g) imposes a certification requirement for discovery requests, responses
and objections paralleling that of FRCP 11.
By signing such a request or response, the attorney certifies that the discovery request is
not predicated on an improper motive such as harassment or delay, and is not
disproportionate to the needs of the case.

o Protective Orders:
A person served with a discovery request may seek a protective order against such request if it
may cause annoyance, embarrassment, oppression, or undue burden or expense.

Discovery may be found unduly burdensome based on the location or condition of the
discoveree, and may be unduly invasive when it probes matter that, though unprivileged, is
confidential.

In order to cure a burdensome discovery request without the court having to wholly deny it,
FRCP 26(c) authorizes protective orders that accomplish the following goals:
Restrict the time, place, method or scope of discovery;
Require that discovery be sealed and only opened by court order;
Limit the disclosure of trade secrets and other business information.

29
Sanctions for Discovery Abuses:
o Under FRCP 37, no party may move for an order, compelling discovery or for sanctions without
certifying that it has tried in good faith to resolve the discovery dispute with other parties without
court action.
FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel discovery or
equivalent discovery order.
FRCP 26(g), FRCP 37(c) and FRCP 37(d), however, permit the imposition of sanctions
without an intervening discovery order in some circumstances.

o The discoverer may move under FRCP 37(a) for an order, compelling discovery either when the
discoveree objects to discovery or responds evasively or incompletely.
If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the movant
attorneys fees and other expenses incurred in making the motion unless it finds that
opposition to the motion was substantially justified.
If the motion is denied, the discoveree has a similar opportunity for reimbursement and the
court may issue a protective order in his favor.

o If a party fails to disclose information required to be disclosed by FRCP 26(a), FRCP 37(c)
precludes that party from using the information as evidence at trial.
Furthermore, FRCP 26(g) requires sanctions against an attorney or party for violation of its
certification requirement.
Because most violations of the discovery rules can also be construed as violations of the
certification requirement, FRCP 26(g) may encourage federal courts to impose discovery
sanctions more often without an intervening order compelling discovery.

o FRCP 37(b) sets forth a range of sanctions by authorizing the court to:
Award discovery expenses against the violator.

Deem established facts that were the object of discovery.

Exclude evidence.

Strike all or part of the pleadings.

Hold the violator of a discovery order (other than one for physical or mental exam) in
contempt.

Dismiss the action.

Render judgment by default.



30
DISCOVERY

Timeline of a Case
1. Complaint
2. 12(b) motions
3. Answer
4. Discovery

Purposes of Discovery
Ascertain/narrow/define the issues in the case
Preserve information for trial
Find information that will develop/define testimony for trial

Discovery Devices
Mandatory Disclosure Rule 26(a)
Depositions Rule 30 & 31
Interrogatories Rule 33
Request for Production of Documents/Things Rule 34
Request for Physical or Medical Exam Rule 35
Request for Admission Rule 36
Deposing Witnesses in Another Jurisdiction Rule 45

Discovery Sequence
Mandatory Disclosures Interrogatories Request for Production Depositions Admissions

Rule 26(a): Required Disclosures
Components
o Names of experts expected to testify
o Statement of all opinions the witness will express
o Data and other information considered by the witness
o Exhibits to be used by the expert
o List of all other cases during the previous 4 years where the witness testified
o Compensation to be paid for study and testimony

Requirements
o Must be disclosed at least 90 days before trial
o Rebuttals must be made within 30 days of the other sides disclosure

Order of Discovery:
1. Interrogatories
2. Request for production of
documents
3. Depositions

31
Major Discovery Tools & Rules
Depositions (FRCP 30 & FRCP 31)
o FRCP 30: Oral Depositions;
o FRCP 31: Written Depositions
Taken/signed under oath
Can depose parties or non parties
Non parties must be subpoenaed; parties just need notice

Interrogatories (FRCP 33)
o Written questions answered in writing under oath
o Can only be sent to parties, not non-parties
o 30 days to answer
o Good for background information

Request to Produce (FRCP 34)
o Asking to produce documents or tangible things
o Can be used to get information from non-parties or parties
Non-parties must be subpoenaed

Medical Exams (FRCP 35)
o Requires a court order
o Can be issued for a party, or someone who is in that partys custody/control

Request for Admission (FRCP 36)
o Can only be sent to parties, not non-parties
o Can force the other person to admit or deny any discoverable matter
o If the party doesnt deny within 30 days, the fact is deemed admitted

RULE 26: GENERAL PROVISIONS GOVERNING DISCOVERY

a) Required Disclosures
1. Initial disclosures
A. Without awaiting a discovery request, the parties must provide:
i. Name, address, phone number for everyone likely to have discoverable information
that the party may use to support its claims/defenses
ii. A copy or description and location of all documents, electronic info and tangible things
that the party may use to support its claims/defenses
iii. A computation of damages (and must make available all documents used to make the
computation)
iv. Any insurance agreement

32
B. Proceedings exempt from initial disclosure:
i. Action for review on an administrative record
ii. Forfeiture action in rem arising from a federal statute
iii. Petition for habeas corpus or proceeding to challenge criminal conviction
iv. Action brought without an attorney by a person in custody
v. Action to enforce/quash an administrative summons
vi. Action by the US to recover benefits payments
vii. Action by the US to college on a student loan
viii. Proceeding ancillary to a proceeding in another court
ix. Action to enforce an arbitration award

C. Time for initial disclosures: Party must make disclosures within 14 days after the Rule
26(f) conference, unless a different time is stipulated or if a party objects.

D. Time for initial disclosures for parties joined later: Must make disclosures within 30
days of being served or joined, unless a different time is stipulated.

E. Basis for initial disclosure; unacceptable excuses: Initial disclosures must be based on
information reasonably available; not excused because it hasnt fully investigated the case
or because the other party has not yet made disclosures.

2. Disclosure of expert testimony
A. A party must disclose the identity of any expert witness it may use at trial.

B. If the expert was specially retained to provide testimony, the disclosure must be
accompanied by a written report containing:
i. All opinions the witness will express and the basis/reasons for them
ii. The facts or data considered when forming the opinion
iii. Exhibits that will be used to summarize the opinions
iv. Qualifications, including publications from last 10 years
v. List of other cases in which the witness testified as an expert
vi. Compensation for the study/testimony

C. If the witness is not required to provide a report, disclosure must state:
i. Subject matter on which the witness will present evidence.
ii. Summary of facts and opinions the witness will testify to.

D. Time to disclose expert testimony, unless stipulated:
i. At least 90 days before trial date
ii. If the evidence is intended solely to contradict other partys evidence, within 30 days of
the other partys disclosure.

E. Supplementing the disclosure: Parties must supplement in accordance with 26(e).

33
3. Pretrial Disclosures
A. Party must provide the following information about the evidence theyll present:
i. Name, address and phone number of all witnesses
ii. Which witnesses will give testimony by deposition, and a deposition transcript
iii. Identification of each document and exhibit; summary of other evidence

B. Time for pretrial disclosures, Objections: Disclosures must be made at least 30 days
before trial. Objections must be made within 14 days of disclosure. Objections not made are
waived

4. Form of disclosures: Must be in writing, signed and served

b) Discovery Scope and Limits
1. Parties may obtain discovery regarding non-privileged matter that is relevant to any
partys claim or defense, including the existence and location of documents/things and the
identity and location of people who may have relevant information. The court may order
discovery of any relevant matter for good cause. Relevant information need not be
admissible at trial.

2. Limitations:
A. The court can alter these limits under Rule 30 or 36

B. Discovery is not necessary for electronic information that is not reasonably accessible
because of undue burden/cost. Burden is on the party to prove undue burden. Court can
still order discovery if the requesting party shows good cause

C. The court must limit discovery if...
i. It is unreasonably cumulative or duplicative or if it can be obtained from a more
convenient/less expensive source
ii. The party seeking it had ample opportunity to obtain the information by discovery in
the action
iii. The burden or expense outweighs the likely benefit (considering needs to the case,
amount in controversy, parties resources, important of issues, importance of discovery in
resolving issues)

34
3. Trial Prep Materials
A. Documents and Tangible Things: Parties cant discover documents prepared in
anticipation of litigation by the other party or his representative, UNLESS...
i. The materials are otherwise discoverable under 26(b)(1)
ii. The party has substantial need for the materials and cant get them by other means
without undue hardship

B. Protection against disclosure: If the court orders discovery, it must protect against
disclosure of mental impressions, conclusions, opinions or legal theories of a partys
attorney concerning the litigation

C. A party may obtain the other partys own previous statement about the action
i. A previous statement is either a signed, written statement, OR
ii. A recording or transcription that recites verbatim an oral statement

4. Trial Prep: Experts
A. A party can depose any expert whose opinions may be presented at trial; if a report is
required, the deposition can only be conducted after the report is provided

B. Drafts of reports or disclosures are protected

C. Communications between parties attorneys and witnesses are protected, UNLESS the
communication...
i. Relates to the experts compensation
ii. Identifies facts or data that the attorney provided and the expert considered
iii. Identifies assumptions that the attorney provided and the expert relied on

D. A party may not discover facts known or opinions held by an expert who is not
expected to be called as a witness, UNLESS
i. As provided in Rule 35(b)
ii. There are exceptional circumstances making it impracticable to find out the information
by other means

E. Payment: Unless injustice would result, parties seeking discovery must:
i. Pay the expert a reasonable fee for time spent responding to discovery
ii. Pay the other part a fair portion of the expenses they incurred in obtaining the experts
opinion

5. Claiming Privilege/Protecting Trial Prep Materials
A. When a party withholds information by claiming privilege, it must...
i. Expressly make the claim
ii. Describe the nature of the materials not disclosed, in a way that allows the other
party to assess the claim of privilege

B. Information Produced: If information already produced is subject to a claim of privilege,
the party making the claim can notify the other parties, and after notification the other
parties must promptly return or destroy the materials

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c) Protective Orders
1. Parties from whom discovery is sought can move for a protective order in the court where
the action is pending (or in the court where the deposition will be taken); motion must include
a certification that the party has tried to resolve the dispute without court action; court can
then issue an order...
A. Forbidding disclosure
B. Specifying terms for the disclosure
C. Prescribing a different discovery method
D. Limiting the scope of discovery to certain matters
E. Designating people who may be present while discovery is conducted
F. Requiring a deposition to be sealed
G. Requiring that a trade secret not be revealed
H. Requiring that parties file documents in sealed envelopes

2. If a motion for a protective order is denied, the court may order that discovery be provided

d) Timing and sequence of discovery
1. A party may not seek discovery before the parties have conferred, expect in a proceeding
exempted from initial disclosure or when authorized by a court order

2. Unless the court orders otherwise...
A. Methods of discovery may be used in any sequence
B. Discovery by one party does not require any other party to delay its discovery

e) Supplementing Disclosures and Responses
1. A party who has made a disclosure must supplement/correct its response if:
A. The party learns that the disclosure is incomplete or incorrect OR
B. As ordered by the court

2. Expert witnesses: If an experts report has been disclosed the party must supplement the
information in the report and given in the deposition as necessary

f) Conferences/Planning for Discovery
1. The parties must confer as soon as practicable, at least 21 days before a scheduling
conference is held or a scheduling order is due
2. Conference Content: The parties should consider the nature and basis of their claims, the
possibility of settlement, necessary disclosures, and a discovery plan. Attorneys are jointly
responsible for arranging the conference, attempting to agree on the discovery plan, and
submitting a report outlining the plan to the court within 14 days of the conference

3. Discovery Plan: Must state the parties views and proposals on...
A. What changes should be made in the timing or requirement for initial disclosures
B. The subjects on which discovery may be needed and when it should be completed
C. Issues about disclosure of electronic information
D. Issues about claims of privilege; agreement on a procedure to assert claims
E. Changes to be made to the limitations on discovery, or other limits to impose
F. Other orders the court should use under 26(c) or 16(b)(c)

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4. Expedited schedule: A court may...
A. Require the parties conference to occur less than 21 days before the scheduling conference
is held
B. Require the written report outlining the discovery plan to be filed less than 14 days after
the conference, or excuse the parties from writing the report

g) Signing Disclosures and Discovery Requests
1. Signature Required/Effect of Signature: Every disclosure and discovery request, response
or objection must be signed by at least one attorney and must include the signers address,
email and phone number. Signature means...
A. The disclosure is complete and correct
B. The discovery request/response is...
i. Consistent with the Rules and warranted by law/not frivolous
ii. Not meant to harass, cause unnecessary delay or increase costs
iii. Not unreasonable or unduly burdensome/expensive

2. Failure to sign: The court must strike the material unless a signature is provided promptly

3. Sanctions: The court may impose an appropriate sanction for a violation of this rule, including
paying expenses and attorneys fees causes by the violation

Admissibility of Discovery
Parties may obtain discovery on any non-protected matter
Relevant information need not be admissible at trial if the information could reasonably lead to
the discovery of admissible information

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When discovery is NOT allowed FRCP 26(b)(2)(C)
The information could be obtained from a more convenient source
The information would be duplicative
The party has had ample opportunity to obtain the information
The burden or expense outweighs the likely benefit, based on...
o The amount in controversy
o The importance of issues at stake in the actions
o The importance of discovery to the issues

Protective Orders/Preventing Discovery FRCP 26(c)
If a party objects to discovery, he can object and not respond or file for a protective order; the
other side may then file a motion to compel (FRCP 37)
o Motion to compel cannot be filed until after the party has attempted to resolve the dispute
with the other side
o Judges hate discovery disputes, so they must be serious to bring to the court

Courts options
o Prevent discovery
o Say discovery must be produced at a certain time/place
o Limit scope of discovery/forbid inquiry into certain matters

Burden is on the resisting party to prove why discovery is improper

Electronic information is discoverable, but there is some protection if the information is mistakenly
disclosed or destroyed

Spoliation: The destruction or material alteration of evidence, or the failure to preserve property for
anothers use as evidence in pending or reasonably foreseeable litigation.
Sanctions are at the discretion of the judge and decided on a case-by-case basis
Duty to Preserve Evidence:
o Arises when a party reasonably should know that evidence is relevant to existing litigation OR
when a party reasonably should know that evidence may be relevant to anticipated litigation.
Adverse Inference Instruction:
o Jury instructed that it may infer that the evidence was destroyed out of a realization that it was
unfavorable to the spoliating party. (Extreme)

Counsels role in preserving discovery
Must ensure the client complies with obligations to preserve documents
Must inform the client what must be preserved and how to preserve it
Must ensure the client identifies and makes available relevant information
Counsel has a continuing duty to ensure preservation and production
Duty to locate relevant information must talk to client to find out where records exist

When a party reasonably anticipates litigation, it must suspend the destruction of documents... Counsel
must oversee compliance with this hold

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International Discovery
If youre trying to get discovery from parties who are not subject to US jurisdiction, you must
operate under the Hague Evidence Convention
If documents or witnesses abroad are subject to control of parties within the US, you can follow
the Federal Rules of Civil Procedure
US courts may order the production of documents or witnesses for use in cases abroad

Courts are generally unsympathetic to adversarial lawyers; dont take too restrictive an approach when
disclosing documents... if in doubt, disclose it

Depositions: FRCP 28, FRCP 30, FRCP 31, FRCP 32

Timing: Depositions should not be taken before substantial discovery has been conducted because
you need documents to control witnesses/tie down the facts

Purpose: A discovery deposition is devised to find of ALL information the opposing side knows about
the case or the other sides case/elicit all the information that opponents have

Deponents: A non-party must be subpoenaed for a deposition under Rule 45

General Limitations
You may object to a question, but the witness still has to answer
You cant use objections to remind witness about what to say
Maximum time = 7 hours long, one day (unless otherwise stipulated)
Total number of depositions may not exceed 10
No person may be deposed a second time without permission of the court or the other side

Before whom may a deposition be taken? (FRCP 28)
Someone authorized to administer an oath
Court reporters, etc.

Deposition by Written Questions (FRCP 31)
Lawyer writes down questions and sends them to court reporter presiding at the deposition, who
asks the questions and records the witnesses answers

How can depositions be used in court proceedings? (FRCP 32)
Depositions may always be used to impeach someones testimony
May be used AS testimony if...
o The witness is unavailable at trial
o The witness is a private person and the deposition was taken outside the subpoena power of the
district court (person cant be forced to come to trial)

Deposition Strategy
Pin down answers to everything that may come up at trial
Use the deposition to impeach the witness
Witness has a right to read, sign and verify transcripts, but often this right is waived by counsel...
having a deponent sign the transcript can help impeach them
Its best to get the witness in a conversational mode
Attorneys must remember to follow up their questions
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Use the deposition to determine whether discovery is complete
Impeachment
Attacks the witness credibility by showing:
o Witness had lied on previous occasions
o Witness had a different story back then
Third party depositions may be used by any party for the purpose of contradicting or impeaching
testimony

RULE 30: DEPOSITIONS BY ORAL EXAMINATION

a) When a deposition may be taken
1. Without leave: A party may depose any person without leave of court; deponents attendance
may be compelled by subpoena
2. With leave: A party must obtain leave of court IF:
A. The parties have not stipulated to the deposition AND...
i. The deposition would result in more than 10 depositions being taken
ii. The deponent has already been deposed in the case
iii. The party seeks to take the deposition before the time specified in 26(d), unless the
party certified that the deponent is expected to leave the country
iv. The deponent is in prison

b) Notice of the deposition; other formal requirements
1. Notice: A party who wants to depose a person must give reasonable written notice to every
other party; notice must state the time and place of the deposition and deponents name and
address; if name not known then a description is required

2. Producing documents: Materials designated for production in a subpoena must be listed in
the notice

3. Method of recording
A. The notice must state the method for recording (may be audio, video, or stenographic);
party giving notice bears the recording costs
B. Any party may designate another method for recording the testimony in addition to the
one originally specified; that party bears the expense

4. By remote means: Parties can stipulate that a deposition may be taken by telephone, etc.

5. Officers duties
A. Officer must begin the deposition with an on-the-record statement including:
i. Officers name and business address
ii. Date, time and place of deposition
iii. Deponents name
iv. Officers administration of the oath
v. Identity of all people present

B. Parties appearance and demeanor must not be distorted through recording

C. After the deposition: Officer must state on the record that the deposition is complete

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6. Notice or subpoena directed to an organization: A party may name as the deponent a
corporation, governmental agency, etc.; the named organization must then designate one
or more officers to testify on its behalf

c) Examination and cross-examinations, objections, written questions
1. Examination and cross-examination of a deponent proceed as they would at trial

2. Objections must be noted on the record, but the examination proceeds. An attorney may
instruct a deponent not to answer only when necessary to preserve a privilege, enforce a
limitation ordered by the court, or present a motion under Rule 30(d)(3)

3. A party may serve written questions in a sealed envelope to the party noticing the
deposition, who must then deliver them to the officer; officer must ask the deponents those
questions and record the responses verbatim

d) Duration, sanctions, motion to terminate or limit
1. Duration: A deposition is limited to 1 day of 7 hours. Court must allow additional time if
needed to fairly examine the deponent, or if circumstances impede the examination

2. Sanction: The court may impose sanctions on anyone who impedes or delays examination

3. Motion to terminate or limit
A. At any time during a deposition, a deponent may move to terminate or limit it on the
grounds that it is being conducted in bad faith; deposition may be suspended while
waiting for an order
B. If terminated, the deposition may be resumed only by order of the court
C. Award of expenses

e) Review and changes by witnesses
1. On request, the deponent must be allowed 30 days after being notified that the transcript is
available to...
A. Review the transcript or recording
B. Sign a statement listing the changes and the reasons for making them

2. The officer must note in the certificate whether a review was requested, and must attach any
changes the deponent makes

f) Certification and delivery; exhibits; copies of the transcript or recording; filing
1. Certification and delivery: The officer must certify in writing that the witness was duly
sworn and the deposition is accurate. The officer must seal the deposition in an envelope and
promptly send it to the attorney who arranged for the recording

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2. Documents and tangible things:
A. Any party may inspect and copy documents and tangible things produced for inspection
during a deposition. If the person who produced them wants to keep the originals, they
may...
i. Offer copies to be marked, attached to the deposition and used as originals after giving
parties an opportunity to compare the copies to the original
ii. Give parties the opportunity to inspect and copy originals
B. Any part may move for an order that the originals be attached to the deposition pending
final disposition of the case

3. Copies of the transcript or recording: The officer must retain a copy of the deposition
transcript, and must furnish a copy to any party or deponent

4. Any party who files the deposition must promptly notify all other parties of the filing

g) Failure to attend: A party who attends a deposition may recover expenses, including attorneys
fees, if the noticing party failed to...
1. Attend and proceed with the deposition
2. Serve a subpoena on a nonparty deponent, who subsequently did not attend

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Interrogatories, Records, Admissions

Interrogatories (FRCP 33)
Written questions that require a written response under oath
o Can only be addressed to parties of the case
o Maximum number = 25, including subparts

Ask questions about...
o Basic background information
o Information about damages

Admissibility
o Interrogatories are admissible as evidence at trial
o They are not binding, but persuasive
o Answers are permissible to the extent allowed by the Rules of Evidence

Objections
o Answering party must either object or answer
o The objection must be stated and signed by a lawyer
o If the party objects, the other party must file a motion to compel to get the answer

Strategy
o Lawyers draft interrogatory questions
o When answering, try to reveal as little as possible, but still required to provide facts that are
reasonably available to you... even if this requires reviewing files, investigating, etc.

Scope FRCP 33(c)
o Interrogatories may relate to any matter which can be inquired into under Rule 26(b)(1) and the
answers may be used to the extent permitted by the Rules of Evidence
Opinions/Contention interrogatories are allowed
Example: Explain why you think Ds behavior constitutes negligence... Specify each act or
omission by D that you contend was reckless...

Option to Produce Business Documents FRCP 33(d)
o Allows a party, in response to an interrogatory question about the number of document
possess/production of certain documents, to give the respondent the option of reviewing the
documents himself
ONLY IF the burden is substantially the same for each party
Producing party must make sure that no records are protected/privileged

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RULE 33: INTERROGATORIES

a) In general...
1. No more than 25 interrogatories (including subparts) may be served on any other party

2. An interrogatory may relate to any matter within the scope of discovery [FRCP 26(b)]; okay to
ask for an opinion or something that requires the application of law to fact; court may order that
the interrogatory need not be answered until some later time

b) Answers and objections
1. The interrogatories must be answered...
A. By the party to whom they are directed, OR
B. If the party is a corporation/government agency, by an officer/agent of the org

2. Responding party must serve its answers/objections within 30 days of being served

3. Each interrogatory must be answered separately and in full (unless objected to)

4. Grounds for objecting must be stated with specificity in a timely manner

5. The person giving the answers must sign them; attorney must sign objections

c) Interrogatory answers may be used to the extent allowed by the Rules of Evidence

d) Option to produce business records: If the answer to an interrogatory may be determined by
examining business records, and the burden of deriving the answer would be the same for either
party, the responding party may:
1. Specify the records that must be reviewed specifically enough to allow the other party to locate
and identify them as quickly as the responding party could, AND

2. Giving the other party a reasonable opportunity to examine, copy & compile the records

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Request for Production of Documents (FRCP 34)

Purpose
o May request almost any type of document or tangible thing
o May also request the ability to visit and inspect property

Procedure
o For a party, must make a simple FRCP 34 request
o For a non-party, must use a subpoena under FRCP 45(a)(1)(C)
o Request must be specific enough that the other side wont exclude relevant material
o Number of requests is not limited

Responding party...
o Must respond unless they object
o Has 30 days to respond
o Must produce documents in the order in which they are ordinarily kept OR the manner in which
they are described

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FRCP 34: PRODUCING DOCUMENTS AND ESI OR ENTERING LAND FOR INSPECTION

a) A party may serve on any other party a request...
1. To produce the following items for inspection/copying:
A. Documents and electronic information in any medium, OR
B. Tangible things, OR

2. To permit entry onto the other partys land to inspect/photograph/survey the property

b) Procedure:
1. Contents of the request:
A. Must describe with reasonable particularity each item to be inspected
B. Must specify a reasonable time, place and manner for the inspection
C. May specify the forms in which electronic information is to be produced

2. Responses and objections:
A. Must respond within 30 days of being served
B. Must either give permission or offer an objection (with reasons) for each item
C. Any objection to part of a request must specify the part permit the rest
D. The response may object to the requested form of producing electronic information; the party
then must state the form it would prefer
E. Procedures for producing documents or electronic information:
i. Must produce documents are they are kept in the usual course of business, or much
organize and label them to correspond to categories in the request
ii. If a request does not specify a form for producing ESI, it must be produced in the form in
which it is usually kept, or in a reasonably usable form
iii. A party need not produce the same ESI in more than one form

c) A nonparty may be compelled to produce documents and things or to permit inspection (FRCP 45)

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Request for Physical or Medical Exams: FRCP 35

Requests can only be made to a party
o Requires a special application to the court and showing of good cause
Must relate to something in controversy
Must be relevant and material to the particular case
The need for the exam must be greater than the burden
o Must have a court order

Court may order a party to submit to a physical or mental examination by a licensed examiner

FRCP 35: PHYSICAL AND MENTAL EXAMINATIONS

a) Order for an examination
1. Court may order a party whose mental or physical condition (including blood type) is in
controversy to submit to a physical or mental examination. (DOES NOT APPLY TO NONPARTIES)

2. Content of the Order
A. May be made only on motion for good cause and on notice to all parties and the person to be
examined
B. Must specify the time, place, manner and scope of the exam, and who will perform it

b) Examiners Report
1. The party who moved for the examination must, on request, deliver a copy of the examiners
report to the opposing party

2. Report must be in writing and detail the examiners findings, diagnosis and test results

3. The party who moved for the examination is entitled to receive reports of all earlier or later
examinations regarding the same condition

4. By obtaining the examiners report, the party waives any privilege concerning testimony about all
examinations of the same condition

5. If the report is not provided, the court may exclude the examiners testimony at trial

6. All of the above applies even when the parties agree to an examination, unless the agreement
states otherwise

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Request for Admission: FRCP 36

Basic tool to narrow the dispute
o Not used to establish liability or important litigating facts
o Just an admission on a set of facts in advance of trial

If a party fails to answer or object within 30 days, the fact is deemed admitted
o Admissions are BINDING at trial
o Admissions are not binding outside the case in any other case

If denied improperly, FRCP 37 provides sanctions to pay for the other sides expenses for proving the
issue at trial
o Must make a reasonable inquiry to determine the answer
o If the statement is partly true and partly false, a party should admit what is true and deny the rest

FRCP 36: REQUEST FOR ADMISSION

a) Scope and procedure
1. A party may serve on any other party a written request to admit the truth of matters relating to:
A. Facts, the application of law to fact, or opinions about either
B. The genuineness of any described documents

2. Each matter must be stated separately; a request to admit genuineness of a document must be
accompanied by a copy of the document unless it has already been made available

3. Time to Respond: A matter is admitted unless the party answers/objects within 30 days

4. Answer: If a matter is not admitted, the answer must specifically deny it or state why it cannot
be admitted or denied. A denial must fairly respond to the substance of the matter, and must
specify the part being admitted/denied. Answering party may assert a lack of
knowledge/information as long as the party has made a reasonable inquiry

5. The grounds for objecting must be stated. Parties may not object just because the request
presents a genuine issue for trial

6. Requesting party may move to determine the sufficiency of an answer or objection. Unless
the court finds the objection justified, it must order that an answer be served. If the answer is
insufficient, the court can order the matter be admitted or the answer amended

b) Effect of an admission/Withdrawing or Amending
1. A matter admitted is conclusively established unless the court permits the admission to be
withdrawn or amended. The court may permit withdrawal/amendment if it would promote the
presentation of the merits of the action and it would not prejudice the amending party in
maintaining/defending an action on the merits. An admission is NOT an admission for any
other purpose and cant be used in any other proceeding

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Subpoenas (FRCP 45)

Allows you to get documents or depositions from a non-party
The party is required to comply unless they object

FRCP 45: Subpoena
a) In general
1. Form and Contents
A. Every subpoena must:
i. State the court from which it is issued
ii. State the title of the action, the court in which its pending, and the civil action number
iii. Command each person to attend and testify, produce designated documents, or permit the
inspection of premises at a specified time and place, AND
iv. Set out the text of FRCP 45(c) and FRCP 45(d).

B. A subpoena commanding attendance at a deposition must state the method for recording the
testimony

C. A command to produce documents or ESI may be included in a subpoena commanding
attendance or a deposition or may be set out separately

D. A command in a subpoena to produce documents/ESI requires the responding party to permit
inspection, copying, testing or sampling of the materials

2. Issued from which court?
A. For attendance at a hearing or trial from the court for the district where the hearing or trial
will be held

B. For attendance at a deposition from the court for the district where the deposition will be
take

C. For production or inspection, if separate from attendance from the court for the district
where the production or inspection is to be made

3. Subpoenas must be issued and signed by a clerk. Attorneys may issue/sign a subpoena:
A. As an officer of a court in which the attorney is authorized to practice

B. As an officer of a court for a district where a deposition is to be taken or production is to be
made, if the attorney is authorized to practice there

b) Service of the subpoena
1. A person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena
requires delivering a copy to the named person and tendering the fees for 1 days attendance and
mileage. Fees and mileage need not be tendered when the subpoena is issued on behalf of the US.
If the subpoena commands the production of documents, then notice must be served before it is
served

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2. Service in the US: Subpoena may be served at any place...
A. Within the district of the issuing court
B. Outside the district but within 100 miles of the deposition/hearing/trial/inspection
C. Within the state of the issuing court if a state statute or court rule allows it
D. Any place the court authorizes on motion and for good cause

3. Service in a foreign country
A. See 28 USC 1783

4. Proof of service requires filing a statement with the issuing court showing the date and manner of
service and the names of the person served

c) Protecting a person subject to a subpoena
1. A party issuing a subpoena must take reasonable steps to avoid imposing undue burden or
expense on a person subject to the subpoena. Court may issue sanctions for noncompliance

2. Command to produce materials/permit inspection
A. A person commanded to produce documents or permit inspection need not appear in person
at the place of production or inspection

B. A person commanded to produce documents or permit inspection may serve a written
objection before the time specified for compliance or 14 days after the subpoena is served
(whichever is earlier). If an objection is made...
i. At any time, on notice to the other party, the serving party may move the issuing court for
an order compelling production or inspection
ii. The order must protect nonparties from significant expense

3. Quashing or modifying a subpoena
A. On timely motion, the court MUST quash/modify a subpoena that...
i. Fails to allow a reasonable time to comply
ii. Requires a nonparty to travel more than 100 miles from where they reside, are employed,
or regularly transact business; except the person may be commanded to attend a trial
anywhere within the state
iii. Requires disclosure of privileged or other protected matter, if no exception
iv. Subjects a person to undue burden

B. On timely motion, the issuing court MAY quash/modify a subpoena that requires...
i. Disclosing a trade secret or other confidential commercial information
ii. Disclosing an un-retained experts opinion or information that does not describe specific
occurrences in dispute/wasnt requested by the party
iii. A nonparty to incur substantial expense/travel more than 100 miles

C. Instead of quashing/modifying a subpoena, the court may order appearance or production
under certain conditions if the serving party...
i. Shows a substantial need for the testimony that cannot be otherwise met without undue
hardship
ii. Ensures that the subpoenaed person will be reasonably compensated

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d) Duties in responding to a subpoena
1. Producing documents and ESI:
A. Documents: Must be produced as they are kept in the ordinary course of business or must
organize and label them to correspond to the categories in demand
B. ESI: Must be produced in the form in which it is normally maintained, or another reasonably
usable form
C. The person producing ESI need not produce it in more than one form
D. Inaccessible ESI: Need not provide discovery of ESI from sources that are not readily accessible
due to burden or cost (their burden to prove). The court may still order discovery if the
requesting party shows good cause

2. Claiming privilege/protection
A. A person withholding subpoenaed information under a claim of privilege must...
i. Expressly make the claim
ii. Describe the nature of the withheld documents in a way that allows the other party to
assess the claim

B. If information produced is subject to a claim of privilege, the person making the claim may
notify other parties of the claim and basis of it, after which the other party must return or
destroy the specified information; the person who produced the information must preserve it
until the claim is resolved

e) A person may be held in contempt if they fail to obey the subpoena without adequate excuse

What to do if you get incomplete answers to interrogatories?
Contract the other side
Send a letter detailing the ways discovery is incomplete
Try to negotiate/compromise
Document every interaction
Bring to the court after three instances of objectionable behavior

FRCP 26(e): A party who has made a disclosure or responded to an interrogatory must supplement or
correct its response in a timely manner if he learns the information is incomplete or incorrect

Privilege

Limitations on Discovery: Privileges
Invoking privileges protects the witness from having to disclose certain information in order to
further certain polities that the courts or legislative branch thinks are important
o The fact that a communication exists cannot be privileged, only its contents
o FRCP 26(b)(5) requires a party to explain why documents should be privileged

Absolute Privilege
o A privilege that cannot be overcome by any showing of need

Qualified Privilege
o A privilege that may be overcome if the other side shows a sufficiently compelling need and an
inability to obtain it from any other source

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Types of privileged relationships
o Attorney-client
o Doctor-patient
o Accountant-client

Federal Rules of Evidence 501: In a case in federal court, the federal court must use federal common
law to govern privilege, except for diversity proceedings, where state law governs

Attorney-Client Privilege
Protects COMMUNICATIONS from CLIENT to LAWYER
o Absolute privilege

The communication and contents of the communication are protected, but the facts are not
o CANNOT ask: What did you tell your lawyer about the bribes?
o CAN ask: What do you know about the bribes?

The privilege applies ONLY IF:
o The asserted holder of the privilege is, or sought to become, a client (not informal)

o The person to whom the communication was made...
Is a member of the bar or court, or his subordinate (paralegal, etc.) AND
It was made while that person was acting as a lawyer

o The communication relates to a fact of which the attorney was informed...
BY his client (doesnt protect communication from lawyer client)
Without the presence of strangers
For the purposes of securing either...
An opinion on law
Legal services
Assistance in a legal proceeding
But NOT for the purposes of committing a crime or tort

o The privilege must have been CLAIMED, not waived
The privilege must be claimed, otherwise it is waived

In the context of organizations, the client is the controlling/decision-making group of employees
Not all employees have a right to employee/client privilege
General counsel does not represent employees individually, it represents the organization

Work Product Privilege: FRCP 26(b)(3) & FRCP 26(b)(5); Hickman v. Taylor
Work product = Materials prepared in anticipation of litigation
o Generally protected under federal common law (Hickman) and Federal Rules

Work product is a QUALIFIED privilege
o Can be overcome by a showing of:
Substantial need, AND
Good cause from the other party (information not otherwise discoverable)

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Some kinds of work product are ABSOLUTELY protected:
o Mental impressions
o Conclusions
o Legal Theories
o Opinions

Policy rationale (from Hickman)
o Allows lawyers to adequately prepare their case without worrying that their work will be
discoverable
o Helps promote efficiency and counteracts unfairness... we dont want one side leeching off the
others work
o Lawyers thoughts and mental impressions should always be protected, because otherwise many
things would stay unwritten, which wouldnt be efficient

FRCP 26(b)(3): Three Step Process (codification of Hickman)
o There is a qualified privilege for documents or other tangible things that are prepared in
anticipation of litigation or for trial
Example: Prepared memos, records of interviews, photographs, evidence collected at the
scene, research, thoughts, quotes, measurement

Only applies to things reduced to writing; will not protect against questions concerning names
of interviewed parties or summaries of what was said by each interviewed person (in that case
you would argue common law privilege under Hickman)

The privilege may be OVERCOME by a showing of:
o Substantial need of the materials, AND
o Opposing party in unable to obtain the substantial equivalent of the materials by other means
without undue hardship

FRCP 26(b)(5): Claims of Privilege/Protection of Trial Prep Materials
o When a party withholds information otherwise discoverable under these rules by claiming that it
is privileged, the party shall make the claim expressly and shall describe the nature of the
documents, communications, or things not disclosed in a manner that will enable the other parties
to access the applicability of the privilege

Test for Work Product Privilege (from Hickman)
Was it created in preparation for litigation or trail?
Is there a substantial need for the information?
Can the information be found by other means?
Does it contain the mental impressions of the lawyer? (Cannot be disclosed)

Example: If a lawyer asks an agent to interview witnesses and report back to the lawyer, that is
considered work product even though it wasnt done by the lawyer himself. However, if the agent is
simply doing his own job by investigating the claim, it is not work product, because it was not specifically
prepared for trail

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Experts

Rules of Evidence 701: With the exception of experts, opinion testimony is only permissible if it is
rationally based on witness impressions and helpful to clearly understand the witness testimony

Expert Witnesses: FRCP 26(a)(2) & FRCP 26(b)(4)
An expert is a person who, through education or experience, has developed skill or knowledge in a
particular subject, so that he or she may form an opinion that will assist the fact-finder

FRCP 26(a)(2): Disclosure of Expert Testimony
o The opposing side is entitled to:
Automatic disclosure of experts who will testify at trial for the other side
A written report from the expert detailing the substance of the experts testimony and basis for
his conclusions
Draft reports are protected unless there is a proven need
Exhibits to be used by the expert
The qualifications of the exert
Education, training, experience
Compensation to be paid to the expert
Other cases the expert has worked on in the past four years

FRCP 26(b)(4): Trial Preparation Experts
o A party may depose any person who has been identified as an expert whose opinions may be
presented at trial

o Four types of experts
Experts that will testify
Everything discoverable

Experts retained in preparation for trial but wont testify
Qualified privilege; only discoverable if theres a showing of exceptional need

Experts informally consulted
Not discoverable (identity, reports, opinions, etc.)

Experts who learned about the case through the normal course of business
Discoverable in the same manner as any other witness

o How to determine type of expert?
Manner in which the consultation was initiated
Nature, type and extent of information provided
Duration and intensity of consultative relationship
Terms of the consultation (payment)

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Required disclosures: FRCP 26(a)
o Required within 10 days:
FRCP 26(a)(1)(2) Names of witnesses, description of documents, calculation of damages,
copies of insurance policies

o Once exchanged, parties may request additional info using other methods (but only after a FRCP
26(f) meeting)
If a plaintiff finds new things he should disclose, he can submit supplementary disclosures
under FRCP 26(e)

Scheduling Conference: FRCP 16(b)
o Court holds its own conference to establish a schedule for motions, discovery, amendments of
pleadings, joinder of additional claims, etc.
Acts as a blueprint for pretrial litigation

o Must be held within 90 days of Ds first appearance or 120 days after service
Courts may appoint a federal magistrate to handle disputes during discovery if its a large trial

Final Pretrial Conferences: FRCP 16(d)
o Held as close to the time of trial as reasonable under the circumstances
Participants shall formulate a plan for trial, including a program for facilitating the admission
of evidence
Must be attended by at least one of the attorneys who will conduct the trial for each of the
parties

Pretrial Orders: FRCP 16(e)
o Judge must enter an order reciting action taken at the pretrial conference/framing the issues
to be tried, whether or not included in the pleading at the outset
Afterwards, the order can only be modified to prevent manifest injustice!
Pretrial order is intended to structure and control the course of trial, therefore there is a strict
standard to change it

Meeting of Parties/Planning of Discovery: FRCP 26(f)
o Requires all parties or their counsel to confer as soon as practicable and at least 14 days before a
FRCP 16(b) scheduling conference to discuss the nature/basis of claims and defenses, discuss
the possibility of settlement, etc.
No formal discovery can commence until AFTER this conference

o Initial FRCP 26(b)(1) disclosures must be produced within 14 days after the FRCP 26(f)
conference
Written report of FRCP 26(f) conference is due 14 days later

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Case Timeline
o (1) D served
o (2) D appears Some indication that D is in the lawsuit
o (3) or (4)
FRCP 26(f) All parties and their counsel must confer ASAP, at least 14 days before a FRCP
16(b) scheduling conference or order is due
FRCP 16(b) Within 90 days of Ds appearance, or 120 days after service, judge shall hold
scheduling conference to discuss how discovery and other pretrial matters shall proceed
o (5) FRCP 26(a)(1) Parties must exchange disclosure lists either at the meeting or within 14 days
after

Expert Testimony Analysis: Disclosure of Expert Testimony
o Actor Expert:
Step 1: FRCP 26(a)(1)
Step 2: Expert Opinion
Provide Initial Discovery [FRCP 26(a)(2)(A)]
o Requires that a party disclose the identity of its expert witnesses and produce an expert
report for each witness.
o Must be made, in absence of other agreement, 90 days before trial. Rebuttal witnesses
only need to be 30 days before trial.
o Persons who MAY testify
o Experts employed by a party:
Specifically employed to provide expert testimony or an employee whose duties
regularly involve giving expert testimony
o Treating physicians: Not required

Step 3: FRCP 26(a)(2)(C): Witnesses Who Do Not Provide a Written Report
o Unless otherwise stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
The subject matter on which the witness is expected to present evidence under FRE
702, 703, or 705; and
A summary of the facts and opinions to which the witness is expected to testify.

o Retained Expert:
Testifying Expert:
Step 1: Provide Initial Discovery [FRCP 26(a)(2)(A)]
Step 2: FRCP 26(a)(2)(B):
o Witnesses who are retained or specially employed or whose duties as an employee of
the party regularly involve giving expert testimony disclosure must be accompanied by
a written report prepared and signed by the witness (at least 90 days before trial).
o A party must disclose the identity of any expert witness it may use at trial
o If the expert was specially retained to provide testimony, the disclosure must be
accompanied by a written report containing:
All opinions the witness will express and the basis/reasons for them
The facts or data considered when forming the opinion
Exhibits that will be used to summarize the opinions
Qualifications, including publications from last 10 years
List of other cases in which the witness testified as an expert
Compensation for the study/testimony
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Step 3: Depose.
Non-Testifying Expert:
There is no discovery unless:
o There are exceptional circumstances, or
o FRCP 35(b): Party upon whom a mental/physical exam was conducted waives
nondisclosure of its non-testifying experts because it requested a copy of the
examiners report.

FRCP 37: Failure to Make Disclosures or Cooperate in Discovery (SANCTIONS)

a) Motion for an order to compel disclosure
1. A party may move for an order compelling disclosure/discovery on notice tot eh other parties. The
motion must certify that the movant has conferred or attempted to confer with the party
failing to make disclosure in an effort to avoid court action

2. The motion must be made in the court where the action is pending. If it involves a nonparty, the
motion must be made in the court where discovery will be taken

3. Specific Motions:
A. To compel disclosure

B. To compel a discovery response: May be made if...
i. Deponent fails to answer a question
ii. Corporation fails to make a designation
iii. Party fails to answer an interrogatory
iv. Party fails to respond that inspection will be permitted/not permitted

C. Related to a deposition: May complete the examination before moving for an order

4. An evasive or incomplete disclosure, answer or response is treated as a failure to disclose

5. Payment of expenses; Protective orders
A. If the motion is granted, the court must require the party to pay the movants expenses
incurred in making the motion, including attorneys fees, UNLESS...
i. The movant filed the motion without conferring to avoid court action
ii. The opposing partys nondisclosure was substantially justified
iii. Other circumstances make an award of expenses unjust

B. If the motion is denied, the court can issue a protective order and must require the
movant to pay the party or deponent who opposed the motion its reasonable expenses
incurred in opposing the motion, including attorneys fees, unless the motion was substantially
justified

C. If the motion is granted in part and denied in part, the court may issue a protective order and
may apportion the reasonable expenses for the motion

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b) Failure to comply with a court order
1. Sanctions in the district where the deposition is taken: If the deponent doesnt obey an order
to answer a question, he can be held in contempt of court

2. Sanctions in the district where the action is pending:
A. If a party doesnt obey a discovery order, the court may...
i. Direct that the matters embraced in the order be taken as established for purposes of the
action, as the prevailing party claims
ii. Prohibit the disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters in evidence
iii. Striking pleadings
iv. Staying further proceedings until the order is obeyed
v. Dismissing the action or proceeding in part
vi. Rendering a default judgment against the disobedient party
vii. Holding the party in contempt of court

B. If a party doesnt comply with an examination order, the court may issue any of the above
sanctions except contempt of court

C. The court can order the disobedient party to pay expenses caused by the failure instead of or
in addition to the sanctions above

c) Failure to disclose, to supplement an earlier response, or to admit
1. If a party fails to provide information or identify a witness as required by FRCP 26, the party is not
allowed to use that information/witness to supply evidence later unless the failure was
substantially justified or harmless. Additionally, the court may...
A. Order payment of reasonable expenses, including attorneys fees
B. Inform the jury of the partys failure
C. Impose other appropriate sanctions (see above)

2. If a party fails to admit what is requested under FRCP 36, and the opposing party later
proves it to be true, the party must pay reasonable expenses the other side incurred to
prove it, UNLESS...
A. The request was objectionable
B. The admission sought was of no substantial importance
C. The party failing to admit reasonably thought it would prevail on the matter
D. There was other good reason for the failure to admit

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d) Failure to attend a deposition or respond to interrogatories/requests for inspection
1. In general:
A. The court may, on motion, order sanctions if:
i. A party fails to appear for a deposition after being served with notice
ii. A party fails to serve answers or objections to interrogatories

B. A motion for sanction must certify that the parties have tried to confer/obtain the answer
without getting the court involved

2. A failure to respond is not excused on the grounds that the discovery was objectionable unless the
party has a pending motion for a protective order

3. Sanctions may include any of those listed above, plus expenses/fees caused by failure

e) Absent exceptional circumstances, a court may not impose sanctions on a party for failing to
provide ESI if the information has been lost in good faith as part of routine operations

f) If a party fails to participate in developing a discovery plan, the court may require them to pay
expenses and fees to the other party

FRCP 37 & FRCP 26 NOTES: Forcing Compliance

FRCP 37(a): Motion to Compel for failure to make disclosures or cooperate in discovery.
o Must first show good faith attempt to resolve
o Winning party gets expenses.

FRCP 37(b): Authorizes sanctions for a failure to comply with an order to compel discovery or
equivalent discovery order.
If a party fails to comply with discovery order, court can, inter alia:
Deem facts established
Prohibit evidence
Strike pleadings
Issue stay of action
Enter dispositive ruling
Hold party (or non-party) in contempt
Require payment of expenses

o FRCP 37(c):
Under FRCP 37(c), a party is subject to sanctions if he:
Fails to make required FRCP 26(a) disclosures or makes false or misleading disclosures.
Fails to supplement a prior discovery request.
Improperly fails to admit a matter in response to a request for admission.

o FRCP 37(d):
One step to substantial sanctions when:
Party does not attend own deposition
Party does not respond to interrogatories at all
Party does not respond to Request for Production.

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FRCP 26(g):
o Signing Disclosures and Discovery Requests
Signature Required/Effect of Signature: Every disclosure and discovery request, response
or objection must be signed by at least one attorney and must include the signers address,
email and phone number. Signature means...
The disclosure is complete and correct
The discovery request/response is...
o Consistent with the Rules and warranted by law/not frivolous
o Not meant to harass, cause unnecessary delay or increase costs
o Not unreasonable or unduly burdensome/expensive

Failure to sign: The court must strike the material unless a signature is provided promptly

Sanctions: The court may impose an appropriate sanction for a violation of this rule, including
paying expenses and attorneys fees causes by the violation.

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Summary Judgment: FRCP 56

Burdens of Proof:
o Burden of Persuasion: the ultimate burden of proving claim or defense by preponderance of the
evidence.
o Burden of Production: the burden of producing evidence to support claim or defense, or element of
either.

Decides claim or defense, or part of claim or defense, prior to trial because the evidence allows for
only one result.

A motion for summary judgment is to be granted if the moving party shows that there is no genuine
dispute as to any material fact and, as a result, the moving party is entitled to judgment as a matter of
law.

A genuine dispute of material fact exists where the evidence before the court is such that a reasonable
jury could return a verdict in favor of the nonmoving party.
o A fact is material if it might affect the outcome of the case.

In deciding a motion for summary judgment, the court is NOT to weigh evidence or credibility of
testimony.

All evidence must be viewed in a light most favorable to the non-moving party.
o All credibility questions must be resolved in the non-moving partys favor (even if that partys
version of events appears to be less credible).

o Summary judgment isnt for deciding WHICH of two versions of facts is correct.
It is for deciding WHETHER there are two versions of facts.
If yes, then no summary judgment.

Burden of Proof on SJ Motion:
o Moving party has burden of persuasion at all times.
Burden of production shifts back and forth.

o Moving party must first make a prima facie showing that summary judgment is appropriate.
How this is done depends on whether movant has burden of proof with regard to the claim at
issue.

o Burden of production then shifts to non-moving party to produce evidence establishing that a
genuine dispute of material fact exists.

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If there is no genuine dispute of material fact and movant is entitled to judgment as matter of
law.
o Defendant may assert either:
I can prove it wasnt me.

She cant prove it was me.
Must point to specific evidence lacking in plaintiffs argument.
Plaintiff must come forth with admissible evidence to support in response (may be in
affidavit form).
Defendant may assert this second form of summary judgment. because plaintiff has burden
of production.
Does not apply if plaintiff has a legal presumption in its favor.
Court must view the evidence in a light most favorable to the non-moving party (assume jury
will believe).
Conclusory statements insufficient to avoid dismissal.

Affidavits
o Affidavits consist of the sworn testimony of the affiant.

o Requirements:
Must be made on personal knowledge
Must set forth facts that would be admissible at trial.
Must establish affiants competence to testify.


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FRCP 56 Notes:

FRCP 56(a): Motion for SJ by a Claiming Party
o A party claiming relief may move, with or without supporting affidavits, for summary judgment on
all or part of the claim. The motion may be filed at any time after:
o 20 days have passed from commencement of the action [filing of complaint]; or
o The opposing party serves a motion for summary judgment.

FRCP 56(b): Motion for SJ by a Defending Party
o A party against whom relief is sought may move at any time, with or without supporting affidavits,
for summary judgment on all or part of the claim.

FRCP 56(c): Proceedings
o Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.
o SJ can still be granted, even with many disputed facts, if there is a failure of evidence as to one
element (or affirmative defense should be taken as true).
o The burden is on the moving party to affirmatively show the absence of a genuine issue as to any
material fact the fact that the burden would be on the other party on the same fact at trial is of no
matter.
o Nonmoving party is to receive benefit of all reasonable doubts.
o Motion typically made after discovery and before trial.
o Importantly, in contrast to a Rule 12(b)(6) motion where the test is simply whether the plaintiff
has alleged enough to get pass the pleading stage, the court may go beyond pleadings and consider
evidence in ruling on a SJ motion.
o The court tries to predict what evidence will be at trial, based pleadings, affidavits, and discovery
but the court cannot weigh credibility.
o Purpose of the SJ motion is to challenge a partys ability to prove an allegation made in the
pleadings court decides whether the issue exists, not the issue itself.

FRCP 56(d):
o The court can determine specific issues in the case on a SJ motion a party need not seek an all-or-
nothing motion.
o Provides method for resolving cases where the parties disagreement is not about the facts
themselves but about the legal effects of the facts.

o FRCP 56(e)(2): Opposing Party's Obligation to Respond
When a motion for summary judgment is properly made and supported, an opposing party
may not rely merely on allegations or denials in its own pleading; rather, its response must
by affidavits or as otherwise provided in this rule set out specific facts showing a genuine
issue for trial. If the opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party.
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Pre-Trial Conferences: FRCP 16

Purposes:
o The overarching aim of the pre-trial conference is to more efficiently manage the course of a
lawsuit. To that end, the pre-trial conference seeks to:
Clarify issues.
Control, expedite and reduce the waste of pretrial litigation generally.
Facilitate settlement.

Procedures for Pretrial Conferences:
o FRCP 16 authorizes one or more pretrial conferences in the judges discretion.
When only one pretrial conference is held, it is usually scheduled after the completion of
discovery, shortly before trial, at which point the parties are to specify issues and evidence and
to amend the pleadings.

o FRCP 16(b) requires the judge to enter a scheduling order within 90 days after the appearance of a
defendant or 120 days after the complaint is served, setting time limits for joinder and
amendment, motion practice, and completion of discovery, and (optionally) setting the dates for
mandatory discovery, pretrial conferences, and trial, subject to modification for good cause.
Usually the parties will be asked to submit pretrial briefs in which parties state the undisputed
facts, identify the disputed facts, summarize legal contentions, and list trial witnesses and
exhibits.
The parties may also be required to make authenticity objections to proposed trial exhibits and
be invited to raise other evidentiary objections that could be ruled upon before trial.

The Pretrial Order and Its Effect:
o FRCP 16(e) requires the court to enter an order after a pretrial conference to preserve its results.
Binding effect is given the pre-trial order, and any claims, witnesses and evidence not specified in
the pretrial order will generally be precluded from trial.
The pretrial order can only be modified in order prevent manifest injustice.

o FRCP 16(f) also authorizes the court to punish disobedience of the pretrial order by:
Striking claims or defenses.
Dismissing the action.
Entering a default judgment.
Holding the disobedient party in contempt.

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The Trial:

Directed Verdict (judgment as a matter of law): FRCP 50(a)
o A motion for a directed verdict is typically made at the close of the other partys case.
Can also be made at the close of the record.

o Standard:
Same as for a motion for summary judgment.

A motion for a directed verdict should be granted only where evidence is so one-sided that no
reasonable jury could find for the non-moving party.

o The court must view all evidence in light most favorable to non-moving party.

o The court must not make credibility determinations or weigh the evidence.

Judgment Notwithstanding The Verdict (JNOV): FRCP 50(b)
o Permits court to enter judgment that is inconsistent with the jurys verdict if court determines that
the verdict was not supported by the evidence.

o Standard:
Same as for a directed verdict and summary judgment.

A JNOV should be entered when the evidence is so one-sided that no reasonable jury could find
for the nonmoving party.

Motion for judgment as a matter of law under FRCP 50(a) is a prerequisite to filing of a JNOV
motion.

Time for Filing:
Party can join a motion for new trial with a motion for JNOV, or request a new trial in the
alternative (i.e., grant motion for JNOV, but if not, order new trial).
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Jury-Trial Process:

Jury Trial:
o The Right to Trial by Jury:
The 7
th
amendment states:
In suits at common law . . . the right of trial by jury shall be preserved. In a long line of cases,
the Supreme Court has interpreted this clause to refer to common law actions in existence
at the time of the amendments adoption in 1791.

The 7
th
amendment does not confer the right to a jury trial in purely equitable actions.
Thus, in determining whether a constitutional right to jury trial exists for a statutory cause
of action in which congress has not expressly created a right to jury trial, federal courts
have been required to determine whether the issue at hand most closely resembles
something adjudicated at law or equity in 1791.

o The legal nature of a claim is to be determined by considering:
The origins of the claim prior to the merger of law and equity;
The remedy sought; and
The practical abilities and limitations of juries.

o However, greater emphasis is to be given to the remedy sought.
Thus, legal claims brought in an action that was historically equitable, (e.g., interpleader, a class
action, or a shareholder derivative suit, may be tried by a jury).

o Where a case presents both legal and equitable claims which have issues in common, the trial
court must first try the legal claim(s) so as to preserve the right to a jury trial on such issues.

o A party cannot seek to bar a jury trial by couching essentially legal claims to appear as if they exist
at equity.
In Dairy Queen, Inc. v. Wood, the Court stated that the right to a jury trial applies whether the
trial judge chooses to characterize the legal issues presented as incidental to the equitable
issues or not.

Claiming a Jury Trial:
o A party that does not make a timely demand for such waives the right to a jury trial.

o FRCP 38(b) requires the demand to be made in writing at any time after the commencement of the
action and not later than 10 days after the service of the last pleading directed to such issue.

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Jury Selection:
o Voir dire: the process by which a jury is selected, and is intended to expose biases or interests of
venire members (potential jurors) that would disqualify them for cause.
Usually parties are given unlimited challenges for cause and a limited number of peremptory
challenges.

o A peremptory challenge permits counsel to keep persons off the jury without offering a reason,
although SCOTUS has ruled that civil litigants may not use their peremptory challenges to exclude
jurors on account of the jurors race or gender.

o FRCP 48 requires a minimum of six jurors in federal civil trials.
States differ as to the minimum number of jurors required in state civil trials.

Burden of Proof:
o Burden of Production:
A plaintiff must present a prima facie case by presenting sufficient evidence on every essential
element of the plaintiffs claim.
If the plaintiff produces sufficient evidence on those issues to justify submission of the
matter to the trier-of-fact, the plaintiff has met his initial burden of production.
o If not, a directed verdict (in state courts) or a judgment as a matter of law (federal
courts) may be granted against the plaintiff.

In some cases, once the plaintiff produces sufficient evidence to justify submission of an issue
to the trier-of-fact, the burden of production shifts from plaintiff to defendant.
Defendant then must produce sufficient evidence to avoid having a directed verdict or
judgment as a matter of law entered against him.

For some issues (e.g., affirmative defenses), defendant has the burden of production.

o The Burden of Persuasion:
To meet the burden of persuasion, a party must convince the trier-of-fact (the jury in a jury
trial; the judge in a bench trial) of the truth of an issue to a pre-determined level of certainty.

In most civil cases, the required standard proof is a preponderance of the evidence, i.e., that the
facts are more likely than not as the party contends. (Depending on the issue, the plaintiff or
the defendant may have the burden of persuasion.)

However, in some civil cases where interests more significant than money are at stake, e.g.,
civil commitment, termination of parental rights, and deportation, the plaintiff must persuade
by clear and convincing evidence.

Presumptions:
o A presumption allows the trier-of-fact to infer the truth of a fact based on proof of another fact.

o A rebuttable presumption exists when a party in establishing one fact is deemed to have
established a second, unless another party offers evidence rebutting the presumed fact.



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FRCP 50: Judgment as a Matter of Law
o FRCP 50(a)(1): In General
If a party has been fully heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party on
that issue, the court may:
FRCP 50(a)(1)(A): Resolve the issue against the party; and
FRCP 50(a)(1)(B): Grant a motion for judgment as a matter of law against the party on a
claim or defense that, under the controlling law, can be maintained.

o FRCP 50(a)(2): Motion
A motion for judgment as a matter of law may be made at any time before the case is submitted
to the jury. The motion must specify the judgment sought and the law and facts that entitle the
movant to the judgment.

o FRCP 50(b): Renewing the Motion After Trial; Alternative Motion for a New Trial
If the court does not grant a motion for judgment as a matter of law made under FRCP 50(a),
the court is considered to have submitted the action to the jury subject to the court's later
deciding the legal questions raised by the motion. No later than 10 days after the entry of
judgment[or dismissal of the jury]the movant may file a renewed motion for judgment as
a matter of law and may include an alternative or joint request for a new trial under FRCP 59.
In ruling on a renewed motion, the court may:
FRCP 50(b)(1): Allow judgment on the verdict, if the jury returned a verdict;
FRCP 50(b)(2): Order a new trial;
FRCP 50(b)(3): Direct the entry of a judgment as a matter of law.

o FRCP 50(c): Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial
FRCP 50(c)(1): In General
If the court grants a renewed motion for judgment as a matter of law, it must also
conditionally rule on any motion for a new trial by determining whether a new trial should
be granted if the judgment is later vacated or reversed. The court must state the grounds
for conditionally granting or denying the motion for a new trial.

FRCP 50(c)(2): Effect of a Conditional Ruling
Conditionally granting the motion for a new trial does not affect the judgment's finality; if
the judgment is reversed, the new trial must proceed unless the appellate court orders
otherwise. If the motion for a new trial is conditionally denied, the appellee may assert
error in that denial; if the judgment is reversed, the case must proceed as the appellate
court orders.

o FRCP 50(d): Time For A Losing Partys New-Trial Motion
Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law
is rendered must be filed no later than 10 days after the entry of the judgment.

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o FRCP 50(e): Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal
If the court denies the motion for judgment as a matter of law, the prevailing party may, as
appellee, assert grounds entitling it to a new trial should the appellate court conclude that the
trial court erred in denying the motion. If the appellate court reverses the judgment, it may
order a new trial, direct the trial court to determine whether a new trial should be granted, or
direct the entry of judgment.

o Upon the close of a partys case, if the opposing party believes that such other party did not prove
his case, he may move for a judgment as a matter of law.
Traditionally, when a motion was made at the end of the plaintiffs case, or after both sides had
rested but before the jury retired to deliberate, the motion was one for directed verdict.

When made following the jurys verdict, the motion was for judgment notwithstanding the
verdict (JNOV).
Although states retain the distinction, federal law has merged the two motions into one for
judgment as a matter of law.

o A motion for judgment as a matter of law may be granted if, after a party has been fully heard on
an issue, there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue. [FRCP 50(a)(1)]

The party seeking judgment as a matter of law must make a motion before the jury retires, specifying
the judgment sought and the law and facts on which the moving party is entitled to judgment. [FRCP
50(a)(2)]
o If the court does not grant the motion prior to the jury returning a verdict, and the verdict is
unfavorable to the movant, he must renew such motion no later than 10 days after the verdict.

In a bench trial, either party may move for judgment as a matter of law after the opposing party has
been fully heard with respect to a potentially dispositive issue of fact, and the court may (but need
not) enter judgment on partial findings at any time it can appropriately make a finding of fact on that
issue. [FRCP 50(c)]

Instructing the Jury:
o Whether or not the parties request instructions, a judge has the duty in most jurisdictions to
instruct the jury on the applicable law.

o FRCP 51 treats the manner in which jury instructions are to be prepared and given in federal
court.
FRCP 51 is typical in providing that a party may challenge instructions on appeal only if he
objects before the jury retires to deliberate, stating distinctly the matter objected to and the
grounds of the objection.
Appellate courts decide the correctness of instructions de novo, but view the instructions as
a whole, including any curative instructions, and reverse only for prejudicial error.

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New Trials:

Generally:
o FRCP 59(a) and many state rules authorize a new trial in appropriate cases.

o Most grounds for new trial fall into two categories:
Errors in the jurys evaluation of the evidence; and
Jury verdicts may support an order for a new trial if the trial judge concludes that the
verdict is excessive, inadequate, or otherwise against the weight of the evidence.
o Against the Weight of The Evidence:
The standard often applied in federal courts for determining whether a new trial is
warranted is if:
The verdict is against the clear weight of the evidence (AGWE); or
Based upon evidence which is false; or
Will result in a miscarriage of justice
Even though there may be substantial evidence which would prevent direction
of a verdict.

In considering a motion for a new trial, the court does not merely test the verdict for
sufficiency, as is the case for motions for judgment as a matter of law, but actually
weighs the evidence. Thus, there may be sufficient legal grounds for the verdict but
the verdict may still be set aside for a new trial.

If new trial granted for procedural error, wide latitude to trial court.

If new trial granted for AGWE, closer appellate scrutiny = less latitude to trial court.

If ground is AGWE, more trial court scrutiny allowed if trial is long and issue
complex.

If ground is AGWE, issues are common, and case turns on credibility, trial court may
not substitute its judgment.

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o Excessive or Inadequate Verdicts:
When a motion for a new trial is granted made on an assertion that the verdict is
excessive or inadequate, the trial court may conditionally grant the motion by
requesting the opposing party to accept remittitur, and in some states, additur.
Remittitur: court can offer reduced verdict in lieu of new trial where jury award
was excessive.
o A party who consents to remittitur waives any right to appellate review of it.

Additur: court can offer increased award in lieu of new trial where jury award
was inadequate.
o However, additur has been held to be in violation of the 7
th
amendment right
to a jury trial and is therefore not available in federal trials.
As the 7
th
amendment does not apply to the states, however, additur may
be available in state trials. Not permitted in federal court except to
correct miscalculation.

Another option is for the trial court to grant of partial new trial limited to the
issue of damages when the amount of the verdict has been attacked.
o In federal court, partial new trial may not be resorted to unless it clearly
appears that the issue to be retried is so distinct and separate from the
others that a trial of it alone may be had without injustice.
o In diversity cases, state law controls regarding the standard to apply in
determining whether an award is excessive.

Errors in the trial process, including errors in the law applied.
Trial Process Errors:
o There are a variety of errors that may taint the trial process.
o These include judicial errors in instructing the jury or admitting or commenting on the
evidence, and misconduct by parties, counsel, witnesses or jurors.
o The judge has discretion to grant a new trial under these circumstances. However, no
verdict may be set aside and new trial granted based on a harmless error.
o A harmless error is one, which does not adversely affect the substantial rights of the
complaining party.
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Trial-Level Challenges To Judgments:

A party against whom a verdict is rendered may, in addition to appealing, challenge the judgment at
the trial level by:
o Collateral attack (in the case of default judgments);
o Seek extraordinary relief (excusing the aggrieved party from the judgment); or
o Amendment of the judgment.

Collateral Attack:
o Collateral attack may be used to challenge a default judgment.

o Collateral attack is founded on the principle that, if the plaintiffs choice of forum was so unfair as
to violate the defendants right to due process, defendants refusal to participate in the action
should not preclude him from later challenging the courts personal jurisdiction over him.

Extraordinary Relief:
o When the time for direct attack on the judgment by motion for judgment as a matter of law, for a
new trial or by appeal has expired, a party may still seek extraordinary relief from the judgment
by a FRCP 60 motion.

o At any time after the judgment a party may seek correction of clerical mistakes in judgments,
orders or other parts of the record. [FRCP 60(a)]
FRCP 60(a): Corrections Based on Clerical Mistakes; Oversights & Omissions:
The court may correct a clerical mistake or a mistake arising from oversight or omission
whenever one is found in a judgment, order, or other part of the record.
The court may do so on motion or on its own, with or without notice.
But after an appeal has been docketed in the appellate court and while it is pending, such a
mistake may be corrected only with the appellate court's leave.

o No later than one year from judgment, a party may seek relief under FRCP 60(b) based on:
Mistake, inadvertence, surprise, or excusable neglect;
Newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under FRCP 59(b);
FRCP 59(b): Time to File a Motion for a New Trial
o A motion for a new trial must be filed no later than 28 days after the entry of judgment.
Fraud misrepresentation, or other misconduct of an adverse party.

o FRCP 60(b) furthermore provides for relief upon motion brought within a reasonable time where:
The judgment is void;
The judgment has been satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no longer equitable; or
Any other reason that justifies relief.

Amendment:
o Within 10 days of entry of the judgment, a party may make a motion to amend the judgment,
pursuant to FRCP 59(e).
FRCP 59(e): Motion to Alter or Amend a Judgment
A motion to alter or amend a judgment must be filed no later than 28 days after the entry of
the judgment.
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Disposition Without Trial:

Default Judgment:
o If a defendant fails to respond to a pleading within the time designated for response, he is in
default and subject to entry of a default judgment.
Entry of Default:
FRCP 55 authorizes the clerk to enter a default when it appears from the docket or is shown
by affidavit of the claimant.

Entry of default is simply a notation of the fact of default and an interim step towards the
entry of a default judgment.

FRCP 55(c) authorizes the court in its discretion to set aside an entry of default upon good
cause shown.

Entry of Default Judgment:
Upon affidavit by a claimant that the relief sought is a liquidated amount, a court clerk may
enter a default judgment, pursuant to FRCP 55(b)(1), except where the defaulting party is
an unrepresented minor or incompetent or the party has not appeared in the action.

Only the court may enter judgment in all other cases.

When the defaulting party has previously appeared in the action, notice and possibly a
hearing is necessary. Like other final judgments, default judgments are subject to timely
post-judgment attack under FRCP 60(b).

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Summary Judgment:
o Standard for Summary Judgment:
Where a party (typically the defendant) believes that there exists no genuine dispute of material
fact that would require determination by a trier-of-fact, he may bring a motion for summary
judgment seeking judgment in his favor on some or all claims and defenses as a matter of law.
A material fact is an essential element of claim or defense for purposes of summary
judgment.

A genuine dispute is one, which a reasonable jury could resolve against the movant.

The standard for summary judgment is whether there can be but one reasonable
conclusion. (Anderson v. Liberty Lobby, Inc.)

o Burden of Production:
A motion for summary judgment may be supported by the pleadings, discovery documents,
affidavits, and any other materials that present facts that would be admissible at trial. Hearsay,
speculation, conclusions of law, conclusory ultimate facts, and promises that the necessary
evidence will be offered at trial therefore cannot support a motion for summary judgment,
even when presented by an otherwise proper affidavit.

If movant meets his burden of production that there exists no triable issue of fact, in order to
avoid a finding of summary judgment, the opposing party may not rest upon the mere
allegations or denials of his pleading but must set forth specific facts showing that there is a
genuine issue for trial. [FRCP 56(e)] Alternatively, the opposing party may present an affidavit
under Rule 56(f) stating why he cannot state specific facts in opposition to summary judgment
at the present time, without adequate time for discovery. The reasonableness of plaintiffs
request for time is a crucial factor in the exercise of the courts discretion.

If the movant for summary judgment fails to meet his burden of production, the opposing
party need not do anything as entry of summary judgment is not proper in the absence of a
prima facie showing that there is no genuine dispute of material fact.

o Disposition and Appeal:
If the court finds that the movant has met his burden of production, it may enter judgment on a
claim or defense.
The court may enter judgment on the issue of liability alone, even though the amount of
damages remains for trial.

While summary judgments address the merits, they may not be immediately appealable.

Summary judgment as to liability alone is interlocutory in character and identified as such
under FRCP 56(c).
Similarly, summary judgment with respect to fewer than all the claims or parties is also not
considered final for purposes of federal appeal, although a court may direct entry of a final
judgment in such cases in conformity with FRCP 54(b).