RULES

Rule 7: Pleadings Allowed; Form of Motions and Other Papers

Rule 8: General Rules of Pleading
Rule 9: Pleading Special Matters
Rule 11: Sanctions
Rule 12: Motions
Rule 15: Amendments
Rule 18: Joinder of CLAIMS
Rule 20: Joinder of PARTIES
Rule 13: Counter-Claim and Cross-claim
Rule 14: Third Party Practice
Rule 19: Required Joinder of PARTIES
Rule 26: (a)(1): Discovery
Rule 26(b)(1),(2),(3),(5)
Rule 26(c)
Rule 26(e)(1)
Rule 37(a): Electronically Stored info
Rule 37(c)(1)
Rule 56(c): Summary Judgment

Rule 7: Pleadings Allowed (difference between pleadings and motions)

(a) PLEADINGS. Only these pleadings are allowed:

(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
(5) a third-party complaint;
(6) an answer to a third-party complaint; and
(7) if the court orders one, a reply to an answer.

(b) MOTIONS AND OTHER PAPERS.

(1) In General. A request for a court order must be made by motion. The motion must:
(A) be in writing unless made during a hearing or trial;
(B) state with particularity the grounds for seeking the order; and
(C) state the relief sought.

(2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers.

COMPLAINT

Rules that apply:

• 7
• 8
• 9
• 11
• 15
• 18
• 19
• 20

Rule 8: General Rules of Pleading

(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the
claim needs no new jurisdictional support;
• A statement of jurisdiction

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 (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) DEFENSES; ADMISSIONS AND DENIALS.

(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials — Responding to the Substance. A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading —
including the jurisdictional grounds — may do so by a general denial. A party that does not intend to deny all the
allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
• Due to Rule 11 and its requirement of good faith based upon reasonable inquiry, a general denial is rarely
proper because there is usually something in the plaintiff's complaint which the defendant in good faith should
admit
 Allegations about the plaintiff's personal identity and jurisdictional matters
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the
part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about
the truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation — other than one relating to the amount of damages — is admitted if a
responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is
considered denied or avoided.

(c) AFFIRMATIVE DEFENSES.

(1) In General. In responding to a pleading (answer), a party must affirmatively state any avoidance or affirmative
defense, including:
• These defenses must always be specially pleaded
• In addition to the denial, the defendant in her answer must plead any defenses or objection that constitute new
matter or an affirmative defense.
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• discharge in bankruptcy;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.
(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a
defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose
terms for doing so.

Rule 8: In practice – IQBAL/TWOMBLY

Staling a claim under the Federal Rules

The plaintiff starts the ball rolling by filing a complaint, but what has to be in it? Federal Rule 8 says it must contain
(1) a statement of the basis for the court's jurisdiction,
(2) a statement of the relief the plaintiff is seeking, and most perplexingly,
(3) a short and plain statement of the claim showing that the pleader is entitled to relied Fed. R. Civ. P. 8(A).
• Iqbal/Twombly

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The purpose of pleading under the Federal Rules is notice to the opposing party: notice of the events that gave rise to the claim, and
the general nature of the legal right the plaintiff asserts. The idea is to do away with technical requirements, to allow the plaintiff to
proceed to discovery based on a simple, general statement of the legal claims she has against the defendant.

This "short and plain statement" requirement is probably met even if the plaintiff does not specifically allege each element she must
establish to prove the claim she asserts.

For example, in a negligence case, the court and the defendant may be able to understand the nature of the plaintiffs claim, even if she
does not specifically allege each of the elements of a claim for negligence: duty, breach, causation, and damages. Similarly, it is clear
that the plaintiff need not allege every fact she plans to rely on to prove her allegations. For example, she may plead generally that the
defendant drove negligently, without specifying the exact conduct that was negligent. Similarly, she may plead generally that she
suffered medical expenses as a result of the defendant's negligence, without specifying in the complaint the medical procedures she
required or the cost of those procedures. In addition, judges are to construe the complaint liberally, taking all reasonable inferences in
the plaintiffs favor in deciding whether an adequate claim has been alleged. The details will be explored through discovery and at trial;
they need not be in the pleadings. The forms accompanying the Federal Rules give a sense of just how spare a complaint can be and
still pass muster under Rule 8(a)(2).

While usually very general pleading suffices, even if it does not allege every element of a legally recognized claim, practice will vary.
Judges who are sticklers for good pleading may find a complaint that fails to allege each element of a claim insufficient, while others
will find a complaint adequate so long as the plaintiff asserts facts that, if proved, would support relief. Practice also varies with the
type of case: Judges may be less exacting for simple types of cases, such as negligence or contract cases, but expect pleading of all the
requirements of more complex claims, such as civil rights, securities, or anti-trust cases. While Rule 8 suggests that a minimalist
approach will survive a motion to dismiss, it will often make sense, to avoid challenges to the complaint and for strategic reasons, to
plead in more detail.

Iqbal/Twombly standard

The general idea about what states an adequate claim under Fed. R Civil P. 8(a)(2) seemed blear before the Supreme Court’s decision
in Bell v. Twombly. Most courts very liberally allowed general pleading, citing Conley v. Gibson. Conley had held that a complaint
should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." As long as the court could conceive of a set of facts, consistent with the allegations asserted in the complaint,
that would state a legal claim, the court should let the case go forward, and sort out the validity of the claim through discovery, pre-
trial motions, or trial.

Twombly, appears to draw back from this indulgent approach to the adequacy of a complaint. In Twombly, the plaintiffs sought
recovery from local telephone companies. They claimed that the companies had conspired to restrain competition in the
telecommunications area, in violation of the Sherman Act, by agreeing to allocate the market for telecommunications services and to
stay out of each other's market areas. The complaint flatly alleged that the defendants had conspired. But specific allegations in their
pleading indicated that the plaintiffs had inferred a conspiracy from the parallel conduct of the defendants in not seeking to enter each
other's market areas. Under federal antitrust law, the mere fact that entities try to discourage competitors or engage in parallel anti-
competitive conduct does not amount to a conspiracy. They must agree to engage in conduct in restraint of trade, not just engage in it.
The plaintiff's complaint did not allege any evidence of such an agreement. However, it did allege that they conspired. Under Convey
v. Gibson's flexible approach, the judge would have let the case proceed, because the plaintiffs might have proved that there were
meetings and agreements to engage in anti-competitive conduct. They weren't required to allege the specifics, just that they asserted a
conspiracy they could produce the proof as the case proceeded.

In Twombly, the Supreme Court held the complaint insufficient under Rule 8(a)(2). The court noted that the plaintiff’s complaint was
conclusory and "did not set forth a single fact in a context that suggests an agreement." In part due to the massive discovery costs that
the Conley standard could unleash, the court reasoned that a plaintiff must allege enough to show that their claim is "plausible," not
just “possible.” Prior to Twombly, a court applying the Conley standard, would have allowed this case to go forward, because the
plaintiff alleged that the defendants had conspired, and if she proved that, the Sherman Act allows damages for it.

To determine Rule 8, court will look to see if the complaint contains conclusory allegations. If there are conclusory allegations,
they must be supported by well plead facts. The court will look at remaining well plead factual allegations and look to whether
they are plausible. The allegations have to be more than possible, but less than probable. Courts decide plausibility based on
common sense and judicial experience.

Twombly has created a lot of uncertainty as to what is sufficient to plead a proper cluing uncover 8(a). Arguably, Twombly requires
"fact pleading,” under which a plaintiff must not only plead that the defendant has violated her rights, but must also allege supporting
evidence of the violations. Others have argued that Twombly is a bit of a sport, a case in very specialized and complex area of practice
in which the plaintiffs by making it clear that they relied on parallel conduct alone to establish conspiracy—had "overpleaded,"
showing that they were not entitled to relief. However, the court went out of its way to stress that it was not imposing a “heightened

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pleading standard” for any case. Furthermore, the Twombly standard was applied in the Iqbal case, a civil rights suit, showing that this
pleading standards applies to more than just anti-trust cases.

The type of information, Twombly requires a plaintiff to plead, is that information that is likely to come from discovery. Under Conley
v. Gibson, a general allegation would get the plaintiff into court, and she would seek the supporting facts through discovery. This is
particularly important for claims in which the defendant is likely to have the evidence that is needed for the plaintiff to make it past
rule 8, probably including antitrust claims. Thus, Twombly rather strongly shifts the balance toward defendants in these types of cases.

However, Twombly reflects a sentiment that the liberality of Conley is not entirely good. To the extent that those rules make it very
easy to get though the pleadings gate, they make it easy to get into discovery. Discovery can be staggeringly expensive and intrusive.
To the extent that the Rules allow shaky claims to get through the pleadings gate and force the defendant to go through discovery, they
tie up judicial resources and put the defendant to unfair expense.

About all that can be said with certainty is that the rules for pleading have changed, at least in some contexts, but it is unclear how
much supporting factual material is needed. It seems fair to say that a plaintiff will have to allege some factual support to show that
she has a viable claim. And it seems wise, if in doubt, to plead supporting facts that tend to support conclusory allegations.

Yet, after Twombly, it is still apparently permissible to plead simple claims in general terms. For example, it is probably still sufficient
to plead an auto negligence case in the style of Form 11, alleging that the defendant caused an accident through negligent driving,
without alleging specific negligent acts of the defendant. It is in the borderline cases, where a claim clearly would not be legally
sufficient without particular facts being established, that a plaintiff will apparently be required to assert those facts or face dismissal.

The meaning of Twombly is obscure and if it hasn’t already, will, unleash an avalanche of litigation through motions to dismiss under
12(b)(6).

It would probably want some further detail about who met at what times, what was decided at the meetings, and what the defendants
do to implement those decisions.

Pleading – Rules 8 and 9

What is the relationship between Rule 8 and Rule 11? Rule 8 tells us that your complaint need only have “bare allegations”, while
Rule 11 requires you to have investigated and have evidentiary support for your factual allegations. From the plaintiff’s standpoint,
when I sign a complaint, I’m supposed to have done all the investigation necessary to support my complaint. But I don’t need to put
that research into my complaint! There might thus be a tendency on the part of the plaintiff to cut corners and ultimately violate Rule
11. The rules are in tension with each other!

• But don’t forget Twombly, heightened pleading standard?

Rule 9(b) where there are particularity requirements for fraud. This rule basically got in by tradition! Fairman thinks it should be
abolished!

Rule 9: Pleading Special Matters

(b) FRAUD OR MISTAKE; CONDITIONS OF MIND. In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.
• Requires: Time, place, and context of the false representations, facts misrepresented, & the nature of the detrimental
reliance
• Don’t have to plead intent
(g) Special Damages. To give the plaintiff notices of the damages to be able to respond.
• If a normal recovery, do not need to plead special damages
• If a tort, like in a contract case, where the damages are unknown, yes plead this
• Purpose: Just to give notice

ANSWER

If you don’t file a Rule 12 motion, then your obligation is to file an answer. You don’t have to answer until a Rule 12 motion is ruled
on, which is one good reason to always file a Rule 12 motion even if it’s mostly bogus.

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You have to file an answer within 20 days of being served if you don’t file a Rule 12 motion. 20 days is a short amount of time! You
always need to check right away when the answer date is. But the Rules provide a way to extend this date. You get 60 days to answer
if you waive service of process under Rule 4(d). Pretty much everybody waives service of process these days.

You have a duty, as a defendant, to avoid unnecessary service costs. The Rules require people who get sued to avoid unnecessary
service costs. One way to do this is to waive the technicalities of service. The defendant also has to pay for service if they don’t
waive it. There’s both a carrot and a stick! Also, waiving service doesn’t waive any of your defenses (except of course process and
service of process). So there’s nothing to lose! Rule 4(d) tells you how you go about doing this. You attach a waiver of service form
to the complaint, ask the defendant to send it to you, and that’s it. You don’t need to hire the sheriff or a process server. Nowadays,
in corporate litigation, this is mostly done by counsel. You have a reasonable time, at least 30 days, to return the waiver. You have 60
days to respond! A plaintiff might choose not to use this, though, if they’re in a jurisdiction where the state statute of limitations is
about to run out. You may have to be personally served before the clock starts. As a plaintiff, worry about the statute of limitations.

Answering a complaint

What must an answer contain?

Answers contain denials, affirmative defenses, and counterclaims.
What are the requirements of those?

Denials are described by Rule 8(b).

The defendant must in her answer admit or deny all the well-pleases allegations of the complaint. A general denial of each and every
allegation of the complaint will almost always be impossible to square with candor and care requirements like those of Rule 11.
Instead, most defendants specifically deny particular paragraphs or sentences of the complaint. In fact, Rule 8
commands that "denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a
part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder." Failure
to deny an allegation in a required responsive pleading, other than an allegation of the amount of damages, is deemed an admission.

When a defendant neither knows nor can learn whether an averment in the complaint is true or false, most jurisdictions permit him to
say so in the answer with the effect of a denial. But he cannot blind himself to what he should know, and facts presumptively within
the control or knowledge of the defendant may be deemed admitted if he responds with an empty-headed denial of knowledge or
information. Moreover, Rule 11 imposes a duty of reasonable inquiry on defendant by which he may obtain the necessary knowledge
or information and explicitly applies to "denials of factual contentions."

• You need to admit or deny, or if you don’t have enough information to admit or deny, you say so and that operates as a
denial.
• When you intend to only deny part of the allegations, you have to say that.
• If you fail to deny an allegation in your answer, it’s admitted. If you don’t say anything about a certain allegation, it’s like
you’re saying it’s true.

Defenses
Besides denials, an answer should contain “in short and plain terms” other defenses to each claim in the complaint. Unless they have
been waived by their omission from a pre-answer motion, some or all of the preliminary defenses may be asserted by an answer or,
when permitted a reply. The nonwaivable defenses may also be asserted. A defendant must also include any affirmative defenses you
may have in your answer.
• Plaintiff’s do not have to reply to defenses asserted by answer unless the court orders. The allegations of the defenses are
taken as denials.
A plaintiff can challenge the legal sufficiency of the defenses by rule 12(f) motion to strike.

Rule 8(b)
o Affirm or deny allegations
o Defenses
o Policy: to put at issue the factual allegations in the complaint
Rule 12
o Defenses and objections
• Use them or lose them. Unfavorable defenses can get waived if not used
• Defenses are waived if not asserted in the defendant's first pleading (answer or motion)
Rule 13
o Crossclaims
o Rule 18/20
• Add all claims if you want

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 • Add all parties if you want
o Counterclaims
o Rule 18/20
• Add all claims if you want
• Add all parties if you want
Rule 8 gets triggered because you have responded
15(a)
o Unless the court orders otherwise, any required response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 10 days after service of the amended pleading, whichever is
later.
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20
19
Rule 11
Rule 14 - impleader of third party defendant

Rule 12

(a) TIME TO SERVE A RESPONSIVE PLEADING.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as
follows:
(A) A defendant must serve an answer:
(i) within 20 days after being served with the summons and complaint (unless they file a 12(b) motion, which
extends the time for filing her answer until 10 days after the rule 12(b) motion is dismissed; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or
within 90 days after it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading
that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 20 days after being served with an order to reply, unless the order
specifies a different time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States
agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint,
counterclaim,
or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an
individual
capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an
answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the
United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within
10 days after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 10 days
after the more definite statement is served.

(b) HOW TO PRESENT DEFENSES (this also has to do with objections). Every defense to a claim for relief in any pleading must
be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: Delays having to
file an answer
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted;
• More plausible than possible (Iqbal/Twombly)
(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a
claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense
or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
• What is a defense or objection?
o A defense says that I am not liable for this… I am not liable under the law

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 o An objection is something like I don’t have to be here: I wasn’t served right,

(c) MOTION FOR JUDGMENT ON THE PLEADINGS. After the pleadings are closed — but early enough not to delay trial — a
party may move for judgment on the pleadings.
• Submission of materials outside of the pleadings converts 12(c) to a motion for summary judgment

(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) MOTION FOR A MORE DEFINITE STATEMENT (this is not a defense or objection, a motion for clarification). A party may
move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that
the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the
defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days
after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
• A complaint that is too vague , ambiguous or confused to enable the defendant to respond can be attacked by 12(e) motion.
o However in notice pleading, discovery, not pleading, is the device intended to obtain information about an
adversary’s case. In light of
• A judge can bring this up on his own. Suisponte
• Plain language of the rule says one thing; the spirit of the rule says another thing.
• Can you file a motion for a more definite statement after you file a 12(b) motion?
o Best suggestion is to file everything you know together
o The plain language of the rule doesn’t say that you cant do this, but
o The spirit of the rule is a conservative route and file everything together
• What is a defense or objection?
o A defense says that I am not liable for this… I am not liable under the law
o An objection is something like I don’t have to be here: I wasn’t served right,
• CASE: Bower v. Weisman
o The court granted the motion for a more definitive statement because the ∏’s complaint employed the term
"defendant" without specifying which particular defendant is referred to. The court held that the ∆ could not
effectively respond to ∏’s complaint until he knows which claims the ∏ is asserting against him in his individual
capacity.

(f) MOTION TO STRIKE (treated like a 12(e) motion. Plain lang: no, so try and raise this after 12(b) motions. There may be an
issue if you bring this or a 12(e) motion first). The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after
being served with the pleading.
• A plaintiff who desires to challenge the legal sufficiency of an affirmative defense may file a motion to strike any
insufficient defense
• Not granted very often
• If the pleadings are not shown to a jury, then fighting over how immaterial, nasty, or gratuitous they are is a waste of
everyone’s time unless their availability in the public record is likely to prejudice the movant.

(g) JOINING MOTIONS.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must
not make another motion under this rule raising a defense or objection that was available to the party but omitted from its
earlier motion.

(h) WAIVING AND PRESERVING CERTAIN DEFENSES.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or
to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
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 (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.

(i) HEARING BEFORE TRIAL. If a party so moves, any defense listed in Rule 12(b)(1)–(7) — whether made in a pleading or by
motion
— and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

NOTES:

Rule 12(a) says there is an answer deadline. You have to answer a complaint 20 days after you’ve been served. That’s not a lot of
time, because after your client has been served, they go around looking for a lawyer, and by the time they get to you, you might have
far less than 20 days to do your answer. But you have another option: if you waive service under Rule 4(d), you get 60 days after the
request of the waiver. As a practical matter, most people waive service because that’s a big boon. These are rules for repeat players in
the litigation game. So 12(a) just tells us when.

Rule

12(b) says there’s a lot of stuff you can present, stuff you can include in your answer. All Rule 12(b) says is: bring it on! Let’s get
everybody in and on the table before we get started. The process is designed to get you into court quickly and cheaply, and then we’ll
work it out later.

When you file an action against somebody, that’s a claim. What if that person wants to sue you back? That’s the counterclaim. What if
I want to sue against two different people? I can have a claim against them, they can have a claim against me, but they might have
claims against each other. These are cross-claims. In other words, these are claims between people on the same side of the “v.”:
plaintiff v. plaintiff, or defendant v. defendant. Let’s say the defendant wants to bring in their insurance company. This would be a
third-party claim.

Rule 12(b) motions (not considered a pleading under rule 7)

• All 12(b) motions are potential pre-trial motions to dismiss a case without it having to go to trial.
o 12(b) is an alternative to answering a complaint. A defendant, who files a 12(b) motion, need not answer the
complaint until after the motion is decided.
 If she prevails she may never have to answer
o A pre-answer motion is entirely optional.
• Lack of personal jurisdiction, improper venue, insufficiency of processes, and insufficiency of service are typical defenses
that can or must be asserted by pre-answer motion. They are the unfavored defenses.
• Defendant’s are required, on penalty of waiver, to raise them preliminary, in the first response to the comliant; at the earliest
time possible. Rules 12(g) and (h) provide that these defenses are waived unless they are asserted in a single pre-answer
motion, or, if none filed, in an answer or reply or any amendment thereto permitted as a matter of course.
o Use them or lose them!
• The defenses of failure to state a claim or defense, lack of subject matter jurisdiction, and failure to join a party under Rule
19, are the favored defenses and, are not waived by their omission from a pre-answer motion.
o Rule 12(h)(3), in fact, provides that the defense of lack of subject matter jurisdiction may be raised at any time,
while Rule 12(h)(2) states that the other nonwaivable defenses may be asserted in any pleading, by motion for
judgment on the pleadings, or even "at the trial on the merits."
o The most common nonwaivable defense is the failure to state a claim. It is asserted by a Rule 12(b)(6). The test for
disposition of the motion depends on the jurisdiction's requirement for stating a claim or cause of action.
 All well-pleaded facts (e.g., not legal conclusions, rank opinion or speculation) in the challenged pleading
are taken as true for purposes of the motion, and all reasonable inferences are drawn in favor of the pleader.
 The province of Rule 12(b)(6) motions is to question the availability of a legal formula justifying relief on
the alleged facts, not to test or determine the facts themselves.

• Rule 12(h) tells us three things: (1) You’ve waived personal jurisdiction, venue, insufficiency of process, and insufficiency of
service of process if you didn’t do these right off. (2) But we protect a 12(b)(6), failure to state a claim, as well as Rule 19,
which can be raised all the way up to the time of trial. (3) But subject matter jurisdiction can be raised at any time, even by
the court itself without any action from the parties. Subject matter jurisdiction is the most favored defense.

POLICY: The unfavored defenses are usually personal to the defendants, and their availability is usually clear from the outset of
litigation. If the defendant has suffered any prejudice from these preliminary defects, she should become aware of it when the
complain t is served upon her. Thus, it is not reasonable to put the burden upon the defendant to raise these defects right away. If the
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rule did not require these objections to be raised immediately, the court and the parties might proceed to adjudicate the suit, only to
learn down the road that the court had no right to do so. To avoid such issues and wasted judicial resources, the rule provides that the
defendant must raise these defenses immediately or waive them by her failure to do so.

Consequences of Challenging a Pleading

Successful Challenge
One reason why Rule 12(b)(6) motions appear so ineffective is that a plaintiff will often moot a- strong pre-answer motion by
amending his defective complaint. Rule l5(a) allows a party to amend his pleading once "as a matter of course" at any time before a
responsive pleading is filed, and a pre-answer motion is not a responsive pleading. Depending upon the federal circuit, amendment as
of right or by permission is available even after a motion to dismiss has been granted, unless the court indicates that no curative
amendment is possible.

Unsuccessful Challenge
The options to the defendant: She may file an answer, although she cannot include the waivable defenses if they were omitted from
her motion. By answering, she forgoes the opportunity to obtain immediate appellate review of the denial of her motion, unless the
jurisdiction permits interlocutory appeals, because there is no final judgment from which to take an appeal.

Depending upon the jurisdiction, she may also waive her preliminary defenses by going forward. But she can preserve the defense that
the complaint fails to state a claim by nurturing it throughout the litigation with motions at trial for dismissal, directed verdict, for
judgment as a matter of law, and after trial, for judgment notwithstanding the verdict, and by appropriate evidentiary objections at
trial. It Will thereby be preserved on appeal of an eventual final judgment. In federal courts, it is preserved by the original Rule 12
motion.

Alternatively, the defendant may elect to stand on her motion and refuse to answer. This course will result in the entry of a default
judgment against her, from which she can appeal. If the appellate court agrees with her, it should remand with leave for plaintiff to
amend. But if the court affirms, defendant may lose the opportunity to defend on the merits.

Rule 11: SANCTIONS

(a) SIGNATURE. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s
name — or by a party personally if the party is unrepresented.
The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise,
a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney’s or party’s attention.

(b) REPRESENTATIONS TO THE COURT. By presenting to the court a pleading, written motion, or other paper — whether by
signing, filing, submitting, or later advocating it(if the litigant knows that the paper is no longer well-grounded) — an attorney or
unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
• Objective requirement – so a complaint that is found well-grounded in fact or law cannot be sanctioned as harassing
regardless of the attorney’s subjective intent.
o Examples: (multiple filings and a pattern of harassment, timing of filing causes strategic delays)
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law;
o What is nonfrivolous? We don’t know. It is in the eye of the beholder.
(3) the factual contentions must have evidentiary support or, if specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or discovery; and
• If an attorney must rely solely on his client (not a good idea), the attorney must question him thoroughly, not accepting
his client version on faith alone
• The requisite prefiling factual investigation must at least include a thorough interview with the client and the key
witnesses, if they are available.
• When the attorney can obtain factual info from a public source, he must do so, and cannot rely soley on his client
o If the necessary info in primarily in the control of the ∆, reliance on the client is reasonable under the rule
• Later Advocating: Once the ∏ has had the full opportunity to find supporting evidence for the allegation (discovery
is complete), and hasn’t found any, the Rule bars her from “later advocating” that position. The ∏ doesn’t have ot
withdraw her allegation, but may not attempt to prove this allegation at trial.
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.

9
(c) SANCTIONS. (purpose – for deterrence, not compensation)
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated,
the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the
violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected
within 21 days (safe harbor) after service or within another time the court sets. If warranted, the court may award to the
prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct
or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty
into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or
all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose
a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the
claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for
the sanction.

(d) INAPPLICABILITY TO DISCOVERY. This rule does not apply to disclosures and discovery requests, responses, objections,
and motion under Rules 26 through 37.

1. Certified Requirement:
Rule 11 requires that every paper filed in court be signed by an attorney, or by the party himself if unrepresented
2. Matter Certified by Signature
By signing/presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or
later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
(b) She has mad an inquiry reasonable under the circumstances to support the factual and legal positions taken;
o What is a reasonable inquiry? The standard is kind of fuzzy
o No more good faith standard (Rule 1983)
(ii) The factual assertions have evidentiary support; and
(iii) The paper factual assertions have evidentiary support;
o Do not bring nonfrivolous suits
• What is it? We don’t know. It is in the eye of the beholder.

3. Sanctions
Imposition of sanctions for violation of Rule 11 is discretionary. Sanctions can be monetary or nonmonetary, but in any event
are to be limited to what is necessary to deter repetition of such conduct. Law firms should be held jointly liable for sanctions
along with the firm members who violate Rule 11.
Rule 11(c)(3) On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically
described in the order has not violated Rule 11(b).
Rule 11(d) INAPPLICABILITY TO DISCOVERY. This rule does not apply to disclosures and discovery requests,
responses, objections, and motion under Rules 26 through 37. (Discovery has its own sanction rules)
4. Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe
the specific conduct that allegedly violates Rule 11(b).
5. Procedure
A party may move for sanctions, but must give the non moving party notice and 21 days to withdraw or correct the sanctionable
paper. The court also has to impose sanctions on its own initiative.
o The motion must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If
warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for
disputing the motion.
o Can have a plainly frivolous claim, and attorney has 21 days to pull it w/o getting sanctioned. Will probably receive
a bad reputation.

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 Policy:
(1)Is to deter. 11(c)(4) A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated.
(2) Rule 11 is about reliance. I have done my homework and this is a good filing. Court and Party is relying on your homework
(3) Access to courts. Weeding out. Self weeding. Should I file this, should I not. Getting people to think if their claim is goo.
You can pull your claim. BUT we don’t know what frivolous is and the procedure may not allow the rule to operate for
(4) Resource constraints. Some lawyers and parties don’t have enough money to do the research. So is this rule keeping party's
out of court.

Case: Chaplin
 the Court believed that the ∆’s attorney had absolutely no factual foundation upon which to base a claim of
religious discrimination. Nowhere in the Amended Complaint did Plaintiffs allege that they had both requested
and been denied a religious accommodation. Even Plaintiffs' belated letter-writing effort failed to support such a
claim. Accordingly, the court imposed Rule 11 santcions for filing the complaint because the complaint was so
lacking in reasonable evidentiary support. The Plaintiffs' amended complaint also contained no factual basis
whatsoever to support an allegation that DuPont's ban discriminates by race. As a result, the court granted
sanctions for that allegation because it was both frivolous and unwarranted such that it failed to satisfy the
requirements of Rule 11(b)(3).

Coleman’s Answer:
First, they could assert that the complaint was filed for an improper purpose, such as publicity, under Rule 11(b)(1). There is no
evidence that this was plaintiffs’ purpose, so this argument will likely fail. Second, under Rule 11(b)(2), defendants may argue that
because there is no Ninth Circuit authority for plaintiffs’ claims, they are not warranted by existing law. Moreover, any argument to
establish new law would be frivolous since three circuits have found that the use of pepper spray is per se constitutional. This
argument will likely fail because there is no authority in the Ninth Circuit against plaintiffs’ claim (see Chaplin and the lack of contra-
authority for plaintiffs’ Title VII claims), so the legal contention is not prohibited by existing law. As to an argument for the
establishment of new law, at least two circuits have allowed for this claim, so it is not frivolous. 2
Finally, defendants may argue that plaintiffs’ complaint runs afoul of Rule 11 because it fails to state any facts to support its claim.
See Chaplin; Rule 11(b)(3). Depending on the outcome of defendants’ Rule 12(b)(6) and Rule 12(e) motions, sanctions could be
levied under this argument. Thus, assuming defendants complied with the 21-day safe harbor under Rule 11(c)(2), and assuming the
plaintiffs could not correct their complaint accordingly, they will withdraw the complaint or risk sanctions.

Am I violating R 11?

a. Have I signed this pleading? 11(a)

b. Have I performed an inquiry that is reasonable under the circumstances? 11(b)
c. Am I presenting this claim for an improper purpose? 11(b)1
d. Is this claim warranted under existing law, or if not, can I make a nonfrivolous argument for extending, modifying
or reversing existing law, or for establishing new law? 11(b)2
e. Do I have evidentiary support, or if not, will I likely have evidentiary support if given reasonable opportunity for
further investigation or discovery? If so, I must specifically state this. 11(b)3
f. When I deny knowledge of information, is it reasonable? Should I have access to this information (reasonable
inquiry under the circumstances) 11(b)4
g. If I am not confident that I have complied with R 11(a) and 11(b), should I file anyway?

What will the consequences be if I file a pleading in violation of R 11(a) and (b)?

a. Opposing party may serve me with a R 11(c) motion asserting my specific conduct that has violated R 11(b). I will
have 21 days (safe harbor) to correct or withdraw my complaint. If I do not do so, opposing party may file R 11(c)
motion with the court, and I may be sanctioned. Sanction may be either monetary or nonmonetary, and my firm will
be jointly accountable.
b. If the court feels that I have violated R 11(b) they can require a hearing for me to show why my conduct does not
violate R 11(b). If I cannot, then the court can impose sanctions on me. When sanctions are undertaken on the Ct's
own initiative, there is no safe harbor and I do not have the opportunity to correct or withdraw my complaint in
order to avoid sanction.

Rule 15: AMENDMENTS

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Rule 15. There are three ways to amend:
1. You may amend once “as a matter of course” before a responsive pleading is served (an answer), or
within 20 of service if no responsive pleading is required. This is basically a plaintiff’s rule. The plaintiff
files a complaint, and you can amend it once before the answer comes back. If there is no responsive
pleading due (like an answer, because there’s nothing that comes after it), you have 20 days after serving
the pleading to amend it.
2. If you have done this already, you must ask for the leave of the court, which will be freely given as justice
so requires. But just what does justice require?
3. Relation back – If SOL has run

Statute of limitations and relating back

Absent some absolute cutoff, you can always beg the court to amend. But if the statute of limitations has run, the cause of action is
cut off. Rule 15(c) talks to us about what we can do with regard to amending our petitions and having those amendments relate back
to when we initially filed the complaint. This is a tool to get around limitations. If we can get our amendment to relate back, then
we’ve avoided the statute of limitations problem. It will relate back if it relates to the same “conduct, transaction, or occurrence.”
Relation back of amendments

• Once as a matter of right: According to FRCP 15(a)(1), either party may amend his pleading once as a matter of right
before a responsive pleading is served by the other party. Due to the fact that plaintiffs had already amended their complaint
to correct a separate pleading defect before the defendant had filed their answer, they no longer have the right to amend as a
matter of right under 15(a)(1).
• By leave of court: In any other situation, a party may amend his/her pleading only by leave of court and such leave is usually
granted liberally prior to trial. Because the primary function of the pleading is to give notice to the pleader's claim or defense,
as long as the original pleading gave such notice, the claim may be expanded or changed in the course of litigation. Leave
will usually be granted unless some actual prejudice to the other party appears or the trial schedule will be disrupted. In the
absence of prejudice or disruption, refusal to permit amendment may be an abuse of the court's discretion.
• Relation Back: If the plaintiff seeks to amend the complaint after the SOL has run on a claim, there is a question of whether
the amended claim "relates back" to the date of the filing of the original complaint. In most jurisdictions, the amended claim
"relates back," as long as the claim asserted in the amended pleading arose out of the same conduct, transaction, or
occurrence set forth in the original pleadings. Under FRCP 15(c), relation back is permitted if an amendment changes the
party or naming of the party against whom a claim is asserted. This relation back is permitted only in cases in which the new
claim arises from the same transaction as that asserted in the original complaint and the new party had notice of the suit
within 120 days of the originally filed complaint (Rule 4). Additionally, the party to be brought in by the amendment must
not be prejudiced in defending on the merits; and knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.
• Mistake/Doe Defendant’s:
The relation back doctrine provision was clearly directed to the situation in which the plaintiff simply uses the
wrong name for the defendant. The rule is meant to allow an amendment changing the name of a party to relate back to the
original complaint only if the change is the result of an error.
Most court jurisdictions hold that a lack of knowledge of a defendant's identity is not a "mistake" concerning that
identity, but rather the plaintiff simply did not know who the defendant was until discovery, and therefore do not permit
relation back of "Doe" defendants. However the Third Circuit has taken a more flexible approach, opining that the
amendment should relate back in these circumstances. Singletary v. Pennsylvania Dept. of Corrections. The Third Circuit
noted the difficulty of the plaintiff's position in these cases if the majority approach applies: if she doesn’t know the names of
those involved in her injury, she must sue well before the limitations period runs, learn the identities of the "Doe defendants"
through discovery, and move to amend before the period runs. Here the limitations period was only one year; not a very long
time compared to the time a normal trial takes. The Singletary court suggests that the Advisory Committee consider
amending Rule 15(c) to clearly authorize relation back in such cases.
In this case the policy of the Third Circuit is the better approach because here the defendant had notice, knew or
should have know, and was not prejudiced. Additionally, the plaintiff learned that the actual the name of the defendant soon
after filing the complaint, not after discovery. The result of allowing the plaintiff to amend her complaint seems fair in this
case because the "Doe defendant", Sheriff Logalot, learned within the limitations period that action had been brought, and
that he was meant to be made a defendant.
However, if we were in a jurisdiction that does not allow relation back of "Doe" defendants, a court is likely not
going to allow the plaintiff to add Sheriff Logalot as a defendant.
Case: Singletary

Coleman’s Answer:
The court is unlikely to grant plaintiffs leave to amend under Rule 15(a)(2) to add Defendant Logalot because the amendment will not
relate back under Rule 15(c). (Plaintiffs moved to amend their complaint to name Logalot on January 31, 2009, but the one-year

12
statute of limitations for their § 1983 claims ran on September 29, 2008.) For an amendment to relate back, Rule 15(c) requires that
the defendant, within the period under Rule 4m (120 days after the filing of the complaint), (i) received notice of the action so that he
will not be prejudiced; and (ii) knew or should have known that that the action would have been brought against him but for a mistake
concerning his identity. Here, Logalot may claim that he was prejudiced because he did not receive notice of the action within Rule
4(m)’s 120-day period. However, plaintiffs will be able to show that Logalot indeed received a copy of the complaint served on his
department and thus had notice of the action within the time prescribed under Rule 4(m). Moreover, Logalot’s own defense will not be
prejudiced because he has already been working with the department’s attorneys on the case. Logalot will be more successful in
arguing that plaintiffs did not fail to name him because of a mistake but because they did not know who he was. While the Singletary
court indicated that Rule 15(c) should allow for this kind of amendment—i.e., the substitution of the properly named party for a “Doe”
defendant—no other court reads Rule 15(c) this way. Thus, unless plaintiffs can show that an actual Sheriff Doe served as sheriff
when the alleged actions took place, and that they mistakenly named him instead of Sheriff Logalot, a court is unlikely to grant
plaintiffs leave to amend their complaint to add Sheriff Logalot.

Rule 18: JOINDER of CLAIMS

o Authorize parties, once they are properly joined in a law suit, to assert additional claims against opposing parties.
• The parties have to have proper claim between them before you can start adding on claims
• Policy: JUDICIAL EFFICIENCY

(a) IN GENERAL.
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.
o Can join as many defendants as you want, even if they are totally unrelated
o Don’t have to join all the parties and all the claims (res judicata - claim preclusion: get it all done at once. Same
transaction or occurrence . If you don’t, you may run the risk of claim preclusion)
o Policy: attempt to liberalize litigation practice by making it more permissive, flexible, and inclusive.
1. The seeking of a convenient litigation package, rather than worrying about whether the causes of action
were identical
2. Unification of claims in a single action is more convenient and less expensive and time consuming for the
parties and the court.
o Subject matter jurisdiction - still have to have, so this can cause problems (for 2nd semester)
o Personal jurisdiction - still have to have, so can cause problems (for 2nd semester)

(b) JOINDER OF CONTINGENT CLAIMS.

A party may join two claims even though one of them is contingent on the disposition of theother; 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.

CASE: No case

Rule 20: JOINDER of PARTIES (Who May be Joined)

Rule 20. Permissive Joinder of Parties

(a) PERSONS WHO MAY JOIN OR BE JOINED.
(1) Plaintiffs (to sue together). Persons may join in one action as plaintiffs if:
(A) 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
 What constitutes the same transaction or occurrence?
• Courts tend to look to whether there is a sufficient overlap of facts or evidence, and to whether
claims are logically related to each other
• Some causal relationship or interrelation
 Once parties are joined under 20(a), Rule 18(a)'s allowance of unlimited Joinder of claims against those
parties is fully applicable.

(B) any question of law or fact common to all plaintiffs will arise in the action.
 Just need one common question of law and fact

(2) Defendants (Plaintiff to sue multiple defendants). Persons — as well as a vessel, cargo, or other property subject to
admiralty process in rem (against a thing and not against a person; concerning the condition or status of a thing) — may be
joined in one action as defendants if:

13
 (A) 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
(B) any question of law or fact common to all defendants will arise in the action.
(3) 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.

(b) PROTECTIVE MEASURES.

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.
o Can get rid of parties who have no claim
o Can sever trials

Policy
It makes good sense to allow parties to join as plaintiffs or sue defendants jointly in a single action. When a number of claims involve
a single transaction or occurrence, and the same issue or issues will have to be litigated to resolve each claim, it is more efficient to
litigate those issues once in a combined action, rather than repeatedly in separate suits. In addition, resolving those issues in a single
action avoids the possibility of inconsistent judgments on the same issue. Such inconsistent results reflect unfavorably on the judicial
system and are best avoided when possible

o The joinder decision is left up to the plaintiff. When all of this criteria is met, the plaintiff does not have to join all of the
parties.
• Can choose to sue some but not all defendants in one action, and can sue others in a separate action or just never sue
them at all.

Case: Kedra
Fam brings suit against City of Philadelphia; Police Commissioner, officials of the Police Department, Division Chief, and Chief
Inspector
Court held that Joinder was proper; The claims against the defendants "arise out of the same transaction, occurrence, or series of
transactions or occurrences" for purposes of Rule 20(a); the similarity of the claims against each defendant made it abundantly clear
that there are common issues. Although the events giving rise to plaintiffs' claims in this case occurred over a lengthy time period,
they all are "reasonably related."

Rule 13: COUNTERCLAIMS and CROSSCLAIMS (for defendants)

Rule: Once properly joined, Rule 13 authorizes a defending party in a suit to assert claims back against a party who has claims against
him. Such claims are either compulsory and permissive, and must be asserted in the defendant’s answer. If the defending party’s
counterclaim arises from the same transaction or occurrence as the claim against him, it is compulsory, which means that he must
assert it in the original action or lose it. This rule forces parties who are already adverse to litigate all claims arising from the same set
of facts in a single transaction. This is very efficient because the same witnesses will be called to testify since the same issues are
likely to arise on the counterclaim. Defendant parties may also assert permissive counterclaims if they so choose. A permissive
counterclaim is any counterclaim that is not compulsory; the claim can be completely unrelated to the original. This cannot be justified
on the same efficiency grounds, since by definition a permissive counterclaim will involve different events from the main claim ,and
the court will almost certainly order separate trial of the permissive counterclaim. However, because the defendant is already before
the court, he is allowed to settle all his claims against his opponent without having to file a separate lawsuit.

(a) COMPULSORY COUNTERCLAIM.

(1) 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: (the claim will be barred if not asserted in the answer)
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.

o Must assert counterclaim with the answer in the original action or lose it (cannot file a separate pleading)
o Identifying claims that must be brought with an answer or otherwise be waived
o A responsive pleading by the plaintiff is required to a counterclaim labeled as such. The reply may contain
denials, affirmative defenses, or even a counterclaim to the counterclaim
 All matters in the reply are deemed "denied or avoided" 8(d)
 But the defendant can attack the reply by a motion for judgment on the pleadings or a motion to strike
FRCP 12
o Test for transaction or occurrence
1. Are the issues of fact and law raised by the claim and counterclaim largely the same
2. Would res judicata bar a subsequent suit on defendants claim absent the compulsory counterclaim rule
14
 3. Will substantially the same evidence support or refute plaintiff's claim as well as defendant's counterclaim
4. Is there any logical relation between the claim and counterclaim
o Podhorn v. Paragon Group, Inc – See below

(b) PERMISSIVE COUNTERCLAIM. A pleading may state as a counterclaim against an opposing party any claim that is not
compulsory.
• Courts almost always order a separate trial of the permissive counterclaim
• If the defendants claims against the plaintiff are unrelated to the claims set forth in the complaint, it is optional (or
permissive) for the defendant to assert them by way of counterclaim; i.e., the defendant may, if she chooses, assert the claim
in an independent action

(g) CROSSCLAIM AGAINST A COPARTY.

Rule: A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the same 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 transaction. The crossclaim may include a claim that the coparty is or may be liable to the
crossclaimant for all or part of a claim asserted in the action against the crossclaimant. These are claims are optional, and are usually
made between defendants. The defendant’s may chose so sue in a separate action if they so choose.
• A defendant may set forth in the answer any claims that she has against a co-defendant that relate to the transaction or
occurance (or to any property) that is the subject of plaintiff's complaint
o e.g. cross-claim for contribution or idemnification.
• Should be set forth as part of the defendant's answer rather than as an independent pleading
o The co-defendant against whom the claim is asserted must file an answer to the cross-claim 7(a)
o The cross claimant may add new parties against whom it has claims growing out of the same transaction 13(h)
• Policy: allowing assertion of these claims in the main action promotes efficiency and consistency because the same
underlying facts will be litigated on the main claim and the cross claim.

CASE:
Compulsory Countercalim - Podhorn v. Paragon Group, Inc

• The Podhorns did not file a counterclaim in the state court action. Their claim should have been filed as a compulsory
counterclaim in the state court action..
• Holding: The Court finds plaintiffs' claims in this case arise out of the transaction or occurrence that gave rise to Paragon's
rent action in the earlier state court case, namely plaintiffs' tenancy at defendants' apartment. Accordingly, plaintiffs were
required to file the instant claims as compulsory counterclaims and their failure to do so bars them from having those claims
heard.

Rule 14: THIRD PARTY PRACTICE

• Must have derivative liability of the main suit!

o Derivative liability: Does the liability depend on the outcome of P and D1/TPP? There has to be liability arising out
of the original claim between the P and D1/TPP , but the TPP does not have to prove anything

(a) WHEN A DEFENDING PARTY MAY BRING IN A THIRD PARTY.

(1) 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 10 days after serving its original answer.
• Leave of court is not required if the third-party defendant files a third-party complaint of impleader within 10days
after he serves his original answerer. After that the grant of the motion is totally up to the discretion of the court
 Very liberally granted.
 Due to justice
• Impleader is proper before any loss actually has been paid by the defendants
• Most courts do not allow a plaintiff to implead a defendant's insurance company until AFTER the plaintiff has
obtained a judgment against the defendant

(2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint — the
‘‘third-party defendant’’:
(A) must assert any defense against the third-party plaintiff’s claim under Rule 12;

15
 (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim
against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule
13(g);

(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and
 Policy: To prevent collusion between the original parties - D admitting or defaulting to P's claim, in order
to affix liability on the impleaded party
• Judicial economy
• Assert affirmative defenses that the D/TPP didn’t assert (not personal defenses because it doesn’t
go to liability)
• So liability has been fully litigated and fair

(D) 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.
 Derivative liability: Does it depend on the outcome of P and D1/TPP? Tuuhhere has to be liability arising
out of the original claim between the P and D1/TPP , but the TPP does not have to prove anything
 Contribution (joint tortfeasors)
• To obtain a judgment that the third party is liable to pay the main defendant part of the damages she is so
order to pay the plantiff
 Indemnification - one party
 Subrogation - (Can step into the plaintiff's shoes - insurance company steps in and makes the claims for
you)
• Coleman's insurance co could have gone after the sellers

(3) Plaintiff’s Claims Against a Third-Party Defendant.

The 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 Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim
under Rule 13(g).
• Once the parties are adverse, the goal is to get everything out there to litigate

(4) 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.

(5) 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.

(6) 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.

(b) WHEN A PLAINTIFF MAY BRING IN A THIRD PARTY. 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.

Policy:
• Pros: Efficiency of hearing the related claims together and avoidance of repeated suits or inconsistent judgments
• Cons: Delay in seeking impleader, complication of the issues in the main action, and potential prejudice to the plaintiff from
impleading a sympathetic third party

CASE:
Gross v. Hanover Ins Co – (Jewelry store case)
• The court granted the insurer's motion to implead the store owner and the employee as third-party defendants in the insured's
action to recover on a policy for the theft of his jewelry b/c the third-party claim arose from the same transaction and found
that its inclusion would serve the interests of judicial economy.
• The court determined that the allegedly speculative nature of the third-party claim did not bar an impleader. Under Rule 14(a)
the words "is or may be liable" in Rule 14(a) make it clear that impleader is proper even though the third-party defendant's
liability is not automatically established once the third-party plaintiff's liability to the original plaintiff has been determined.

Rule 19: REQUIRED JOINDER of PARTIES

16
 Three situations in which an absentee should be joined:
1. Where the plaintiff cannot get relief from the named party
19(a)(1)(A)
2. Where the absentee may be prejudiced by the failure to join
19(a)(1)(B)(i)
3. When the defendant may be prejudiced by the failure to join the absentee
19(a)(1)(B)(ii)

The determination of whether a party is "indispensable" requires two steps:

1. is the party "necessary" under Fed. R. Civ. P. 19(a)?
2. if the party is "necessary," is it also "indispensable" under Rule 19(b)?

• as a general rule, an action to set aside a contract requires the joinder of all parties to the contract.

Necessary Parties Nonnecessary Parties

• Joint Obligors • Joint tortfeasor

o Parties to contracts • Policy: The plaintiff is the master of her lawsuit and can
 May be necessary, but generally not choose to sue as many or as few potential defenders as she
indispensable desires (in accordance of the FRCP)
 Joint promisors under a contract (and other o 20(2)(B) & 18(a) The plaintiff may join in one
joint debtors) should be joined as defendants action all the defendants potentially liable to her
wherever possible. However, if one cannot as a result of a given transaction or occurrence,
be joined, the court can still proceed against ordinarily she is not required to do so, and a joint
those before the court tortfeasor is not considered a necessary party.
 Policy: There is no "substantial prejudice"
to the parties before the court that would
justify dismissal, since an obligator held
responsible on the joint debt has a right of
contribution against the other joint
obligators

• Joint obligees • Original parties to a contract when third-party beneficiary

• Policy: A promise made to obligees jointly should be enforced sues
jointly since otherwise there is a risk that the right of the
absent obligee to enforce the promise may be prejudiced, that
the defendant might be subjected to inconsistent obligations in
an action brought by the absent obligee, and that the court
would be unable to afford complete relief because it could not
provide in its decree for the defendant's obligations to the
nonparty while enforcing the same promise for the plaintiff

• Partial assignees and subrogees • Third-party beneficiary when original party to a contract
sues

• Co-owners of property (if case involves interest of all)

• Corporation in a shareholders derivative action

• Guardian or representative parties

• Limited Pie:
o Trust:
o Very limited pool, so we want everyone there

(a)(1)(A): Complete Relief

(a)(1)(B)(i): Impairment
(a)(1)(B)(ii): Inconsistent Obligations

(a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE. (necessary, ought to be joined if possible)

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 (1) 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:
(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
• Where the plaintiff cannot get relief from the named party
• Focus is on the relief that is sought and the ability of the named parties to render that relief, if so ordered by
the court.
• If a plaintiff seeks a equitable relief that the named defendant cannot alone effect, then the additional
parties need to effect that relief could be necessary parties.
• Inability to collect on a judgment typically will not satisfy the "complete relief" criterion
(B) 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:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or
• Where the absentee may be prejudiced by the failure to join
• Courts only recognize legally protected interests
• Must be more that a financial stake
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
• When the defendant may be prejudiced by the failure to join the absentee
• An inconsistent obligation occurs when a court orders a party to do one thing, and another court
orders the same party to perform an inconsistent act

(2) 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.
(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

(b) WHEN JOINDER IS NOT FEASIBLE. 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. The factors for
the court to consider include:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person’s absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
(c) PLEADING THE REASONS FOR NONJOINDER. When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
(2) the reasons for not joining that person.
(d) EXCEPTION FOR CLASS ACTIONS. This rule is subject to Rule 23.

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CASE:
Temple v. Synthes Corp. –
• Are joint tortfeasors indispensable parties under Rule 19(b)?
• It is not necessary for all joint tortfeasors to be named as defendants in the same suit. The Court finds that joint tortfeasors are
permissive rather than indispensable parties. Multiple tortfeasors equals permissive joinder. This is a black-letter rule. The
gist of the Supreme Court’s ruling in Temple is that the lower court went past the threshold question in Rule 19(a) too soon
and skipped right to the balancing test of 19(b).

Dynard v. Ness, Motley, Loadholdt, Richardson & Poole. PA

• The law professor worked with 2 lawyer groups in litigation against the tobacco industry. ∏ and an attorney from the
Mississippi lawyers group shook hands and made an oral agreement for legal fees with the South Carolina lawyers, which
also applied to the Mississippi lawyers. The defendant received nothing
• The South Carolina lawyers then brought a motion to dismiss the action for failure to join an indispensable party
HOLDING:
• The court denied the South Carolina lawyers' motion to dismiss the action for failure to join an indispensable party or for a
change of venue
• In short, the Court holds that it is not necessary for Daynard to join the Mississippi defendants in this action because they are
(or, drawing inferences in Daynard's favor, could be) jointly and severally liable co-obligors.
• If the Mississippi defendants are not "necessary" under Rule 19(a), then by definition they cannot be "indispensable" under
Rule 19(b)

Rule 26/37: DISCOVERY

26(a)(1) Mandatory initial disclosures

26(b)
(1) Scope of Discovery – what can be requested
(2) When the court must limit discovery – When discovery doesn’t have to occur
(3) Work Product – What is it
(5) How claim Attorney-Client/Work Product - procedure

26(c) Protective Orders

26(e)(1) Supplementing disclosures and responses
37(a) Motion to Compel
37(c)(1) Failure to Disclose, to Supplement an earlier response or admit

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What is Discovery

This is simply the methods used by a party or potential party in a lawsuit to obtain or preserve information. These are the tools we
have to find out stuff or keep stuff from being destroyed.

The purposes of discovery are: (1) Preservation of information that might not be available at trial. You record it through depositions,
interrogatories, and other stuff. (2) Winnowing down the issues in controversy. We want to start narrowing things down. Some of the
issues alleged in the pleadings might not be supportable at trial and you might choose to drop a claim. Or, as a defendant, you might
find that you’re going to be liable and so you’ll settle. (3) Obtain information that will lead to admissible evidence. But you can
discover lots and lots of stuff that will not be admissible.

Discovery comes in the form of: (1) Requests for production, (2) disclosures, (3) depositions, (4) interrogatories, (5) requests for
admissions, and (6) mental or physical exams. These are the six main tools of discovery.

All of these tools are subject to other general discovery rules, like Rule 37: what do you do if you don’t cooperate? This is a sanction
rule. For non-compliance with any of the discovery rule, you can get sanctions, such as: (1) Facts are deemed admitted. (2) Evidence
is prohibited. (3) Pleadings get stricken or a dispositive ruling is made. (4) Contempt! (5) Attorney’s fees and expenses are awarded.

Rules to the fight of discovery:

1. Request documents
2. Produced and/or object on the scope grounds
3. Confer
a. Attorney's have a choice
b. If the attorney really wants it, they will have to confer with the other side because discovery happens outside of the
courtroom
4. Move for a motion to compel (Rule 37) or
5. Move for a protective order (26) - but not the judge is involved, but really irritated
6. Judge will issue a court order… and tell the parties what to do

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REQUIRED DISCLOSURES

26(a)(1) INITIAL DISCLOSURES

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without
awaiting a discovery request, provide to the other parties:
(i) WITNESSES the name and, if known, the address and telephone number of each individual likely to have
discoverable
information — along with the subjects of that information — that the disclosing party may use to support its
claims or defenses, unless the use would be solely for impeachment;
• Impeachment: very few materials fall into this category; if they are relevant for some purpose other than
impeachment, a court may hold this exemption inapplicable.
• Only have to go to the judge and ask for a protective order if you want to use the information for substantive
purposes
• Don’t have to go to the judge if you only want to use the documents for impeachment
• Only need to disclose information that YOU may use to help support your claim

(ii) DOCUMENTS THAT MAY BE USED a copy — or a description by category and location — of all documents,
electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use would be solely for impeachment;
• You can just give the other party of list of what you have if both parties have the same document
• i.e., - both parties would have a police report
• This is a broad concept of use. The expected use of a document or witness that mandates disclosure is not
limited to use a trial. The expectation that a document or witness will be used in connection with any motion or
a pretrial conference is sufficient. Sufficient use even includes certain discovery events, such as questioning a
witness by using a document. However, the concept of use here does not extend to the mere use of a document
or witness’s name to respond to another party’s divisory inquiry.

(iii) COMPUTATION OF DAMAGES. a computation of each category of damages claimed by the disclosing party —
who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the
nature and extent of injuries suffered; and
• A party claiming damages should disclose a computation of these damages and produce the documents on
which the computation is based.

(iv) INSURANCE INFO must produce for inspection and copying as under Rule 34, any insurance agreement under
which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or
reimburse for payments made to satisfy the judgment.
• Must be given in discovery even if inadmissible at trial b/c can be relevant to the issue of ownership… also
helps with encouraging settling
• Must produce for inspection and copying each insurance agreement that might cover the claim.

26(b) SCOPE OF DISCOVERY and LIMITS

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense (including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any
discoverable matter). For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
• Is the info properly requested? → is the info Relevant?
• Material does not have to be admissible as proof at trial. It is sufficient is the information sought appears reasonably
calculated to lead to discovery of admissible evidence.
• The court is authorized to expand discovery to any information relevant to the subject matter of the action is good cause is
shown.
• The determination of whether information is “relevant to the claim or defense of any party,” depends on the facts of each
case, and the type of information that are not directly pertinent to the incident in suit could be relevant to the claims or
defenses.

(2) Limitations on Frequency and Extent.

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 (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or
on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule
36.

(B) Specific Limitations on Electronically Stored Information. (Make these objections)

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably
accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that
showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause,
considering the limitations
of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

• When information is not reasonably accessible because of undue burden or cost, you "Object" in the
response, saying that ESI is not reasonably accessible
• Then the other side moves to compel or you move for a protective order
• The burden is on the producing party - has to show why the info is not reasonably accessible.
 The plaintiff is going to have to hire an IT expert to determine if the info is reasonably accessible
• Cost Shifting Analysis
o We don’t know what reasonably accessible is?
• If it is RA - they produce
• If it is not RA - they can show good cause that they need it
o Can requesting party show Good cause for discovery?
• The test comes from the advisory notes. It is a multi factor test.
o Advisory Committee Notes:
o Once it is shown that a source of electronically stored information is not reasonably accessible, the
requesting party may still obtain discovery by showing good cause, considering the limitations of
Rule 26 that balance the costs and potential benefits of discovery. The decision whether to require
a responding party to search for and produce information that is not reasonably accessible depends
not only on the burdens and costs of doing so, but also on whether those burdens and costs can
be justified in the circumstances of the case. Appropriate considerations may include:
1) the specificity of the discovery request;
2) Availability. the quantity of information available from other and more easily accessed
sources;
3) Bad Behavior. the failure to produce relevant information that seems likely to have
existed but is no longer available on more easily accessed sources (started deleting and
moving info);
4) The likelihood of finding relevant, responsive information that cannot be obtained from
other, more easily accessed sources;
5) predictions as to the importance and usefulness of the further information;
6) The importance of the issues at stake in the litigation; and
7) The parties' resources.
• If good cause is shown, do we cost shift?
o Should there be Cost shifting?
• There is no rule for cost shifting, but some courts still use the Zubulake test.
• Zubulake set forth an analytical framework for determining whether it is appropriate to shift the costs of
electronic discovery. The plaintiff in Zubulake was a highly-paid investment banker who accused her employer of
gender discrimination and illegal retaliation. Zubulake claimed that key evidence was located in e-mails that were
contained only in backup tapes and sought an order compelling the defendant to produce the e-mails at its own
expense. After defendant was ordered to produce the e-mails, the Judge considered whether cost-shifting was
merited.
o As a threshold matter, Judge Scheindlin stated that "cost-shifting should be considered only when
electronic discovery imposes an 'undue burden or expense' on the responding party." “Whether production
of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or
inaccessible format (a distinction that corresponds closely to the expense of production)." Data that is
"accessible" is stored in a readily usable format that "does need to be restored or otherwise manipulated to
be usable." Conversely, data that is "inaccessible" is not readily useable and must be restored to an
accessible state before the data is usable. Backup tapes are considered an inaccessible format, and, thus,
shifting the costs of producing data from backup tapes may be considered.
o If the responding party is producing data from inaccessible sources, Zubulake identifies seven factors to be
considered in determining whether shifting the cost of production is appropriate:

22
 1) The extent to which the request is specifically tailored to discover relevant information;
2) The availability of such information from other sources;
3) The total costs of production, compared to the amount in controversy;
4) The total costs of production, compared to the resources available to each party;
5) The relative ability of each party to control costs and its incentive to do so;
6) The importance of the issues at stake in the litigation; and
7) The relative benefits to the parties of obtaining the information.
• These factors are to be weighed in descending order, the first factor being the most important
consideration and the seventh factor the least important.
•
• You can always cost shift because the protective order section says that a judge an provide any protective
measure they want, which has been interpreted as cost-shifting

Producing party has the P will move to show good cause Under 26(b)(2)(C) - can always cost
burden of showing that • How to show good cause: shift, under 26(C).
the info is not o Specificity request • There is no good body of law to
reasonably accessible o Available do a cost shift analysis for
o Bad behavior - started deleting and moving info unreasonably accessible info -
o Likely-hood of finding • Courts are still citing Zubulake
o Predictions of useful
o Importance of litigation
o Parties resources

(C) COURT MUST LIMIT (or forbid) DISCOVERY if: On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by local rule if it determines that: (More Objections to make)

(i) If discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive;

(ii) Ample opp for discovery. If the party seeking discovery has had ample opportunity to obtain the information sought
by discovery in the action; or

(iii) The discovery is unduly burdensome or expensive. If the he burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
• Criticism: This authority appears to permit the judge to truncate discovery in cases she does not think are
“important.” This is probably not what the drafters of the rules had in mind.

(3) Trial Preparation: Materials – Work Product

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means.
i. Attorney-Client (applies only when invoked by attorney)
a. Can’t overcome. This privilege is absolute
b. Between attorney and client
c. communication between you and your client
d. Legal advice sought about "law" - giving or receiving legal advice. If seeking business advice – no
privilege
e. From a lawyer – when the client reasonably believes that the person seeking advice from is a lawyer
f. Made in Confidential. Must behave as though they intend the communications to be private.
a. The presence of other people during the communication may indicate that the communication was
not confidential, unless the presence of these people was necessary to the communication.
(Secretary, parent if young, people there for moral support)

23
 b. If eavesdroppers overhear. Eavesdropper can testify
1) If electronic surveillance was used, not allowed.
g. No tort or crimes
ii. Work Product
a. Documents and tangible thing in preparation of litigation or trial
• If there is absolutely no foreseeable possibility of litigation at the time the materials are prepared,
then the protection cannot apply.
• Regular reports. When a party makes regular reports of incidents that often lead to litigation (e.g.
accidents), it may be held that such reports are not prepared in anticipation of litigation, since they
can be used for other purposes and are prepared in situations which litigation is not foreseen.
• Purpose: This qualified privilege is designed to maintain the adversary process by enabling each
party to prepare her own case, with free rein to develop her own theory of the case and her own trial
strategy; but this purpose must be reconciled with the overriding need to require full disclosure of
the facts. Is the system about truth and fairness… or about being the best adversary for your client?

b. How to beat this rule: To obtain production of material that is protected as work product, a party ,ust
make a showing of substantial need and that you cannot get substantial equivalent by other means without
undue hardship. The party must show that the material sought is of substantial importance to its case; usually
courts do not treat minimal relevance as sufficient.
c. Attorney Opinion work product is sacred
i. If a showing has been made to justify disclosure, materials containing the mental impressions
of an attorney are given special protection
ii. Only have to give the facts, not theories of the case, mental impressions, conclusions, opinions,
legal research, avenues of investigation, assessments of the persuasiveness of various possible
witnesses.
iii. So ask for redaction to cover them up in the copying process so that they cannot be read.
d. Are statements by witnesses attorney-client priv or work product?
i. Attorney Client
a. If statements are made in confidence regarding past events
b. Attorney’s employees: May apply to statements made to an investigator employed by the
party’s counsel
c. A party cannot hide behind this rule and put documents beyond the reach of discovery by
turning them over to counsel. Nor can a party relieve himself the obligation to disclose by
making disclosure to his own lawyer. AN attorney cannot just label doc’s privilege to
avoid discovery. All that is protected is the content of the communication form client to
lawyer.
d. Statements by employees of corporation
i. The attorney-client privilege applies to communications made in confidence by
employees of a corporation, including nonsupervisory employees in many
jurisdictions.
ii. Confidential reports: The attorney-client privilege may also apply to routine
reports that are intended to be confidential records of the corporation, prepared
for the corporation's attorney; e.g., accident reports prepared by a truck driver
according to company policy that such reports be submitted immediately
following any accident for confidential use of the corporation's lawyers.
iii. Other reports: Other reports of employees to corporate counsel are not covered
by the attorney-client privilege, but may be subject to the qualified work product
privilege if they were made or prepared in anticipation of litigation. However,
remember that regular reports may be found to not meet the "in anticipation"
requirement.

CASE: Hickman v. Taylor (Work Product)

o Tugboat sank killing 5 crew members. Steamboat inspectors held a Public hearing where the 4 survivors were
examined. Shortly after this hearing, Respondents, tug boat owners and underwriters, employed a law firm to defend them
against potential suits resulting from the sinking of a tug in which their crew members drowned. Respondents' attorney
interviewed and took written statements from the survivors in anticipation of litigation. Petitioner filed 39 interrogatories
(questions) directed to respondents, some of which requested copies of written statements taken from the crew members,
detailed reports of oral statements, records, or other memoranda made concerning the tug's sinking. Respondents, through
counsel, did not provide the requested materials; claimed work product, and did not have to produce.
o Rule: Materials prepared and information developed by or under the direction of a party or her attorney in
anticipation of litigation are subject to discovery only if the discovering party can show a substantial need and an inability to
obtain equivalent material by other means.
24
 o Hickman only applies to the work of lawyers. 26 is broader.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
o Redaction - Court takes an eye, along with the attorney's help to remove mental impressions,

(C) Can Obtain your own Previous Statement. Any party or other person may, on request and without the required showing, obtain
the person’s own previous statement about the action or its subject matter (and can give it to your attorney or anyone you want). If the
request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is
either:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording — or a transcription of it
— that recites substantially verbatim the person’s oral statement.

What to do If Claiming Attorney Client Privilege or Work Product (Protecting Trial-Preparation Materials)
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is
privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a
manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) If accidently produce Privileged material. If information produced in discovery is subject to a claim of privilege or of protection
as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis
for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must
not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.
The producing party must preserve the information until the claim is resolved.

(c) PROTECTIVE ORDERS.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the
action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will
be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an
order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the disclosure or discovery;
(C) prescribing a discovery method other than the one selected by the party seeking discovery;
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(E) designating the persons who may be present while the discovery is conducted;
(F) requiring that a deposition be sealed and opened only on court order;
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed
or be revealed only in a specified way; and
(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as
the court directs.
Policy: Protective orders are designed to prevent undue burdens that might otherwise be imposed by discovery. The availability of
protective orders recognizes both that discovery can be extremely intrusive and that parties may seek to abuse it. Both concerns can be
ameliorated through protective orders.

Good Cause Req:

Confidentiality, Specific harm, privacy
Inconvenient place of examination
Unduly burdensome (expensive or excessive)
Unreasonable conduct of deposition
deposition conducted in a manner annoying, embarrassing, or oppressive

(e) MUST SUPPLEMENT/CORRECT DISCLOSURES AND RESPONSES.

(1) A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or
request for admission — must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete

25
 or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during
the discovery process or in writing; or
(B) as ordered by the court.

37(a) FAILURE to MAKE DISCLOSURES; SANCTIONS

(1) On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing
to make disclosure or discovery in an effort to obtain it without court action.
• Need to meet and confer before the motion is filed with the court.
(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for
an order to a nonparty must be made in the court where the discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to
compel disclosure and for appropriate sanctions.
• If party fails to make disclosures req under 26(a) , or to supplement disclosures, the court should usually
exclude undisclosed materials from evidence, and may impose rule 37 sanctions
 Unless the party has substantial justification for its failure to disclose, or when the failure to
disclose was harmless.
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer,
designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under
• if the party completely fails to file a response to a discovery request or to attend a properly notices deposition, discovery sanctions can
be sought right away w/o the need for a prior order compelling discovery
(ii) a corporation or other entity fails to make a designation
(iii) a party fails to answer an interrogatory submitted
(iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested

(C) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn
the examination before moving for an order.

(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete
disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond.

(5) Payment of Expenses; Protective Orders.

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted — or if the
disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or
both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court
action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.

(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c)
and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney’s
fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an
award of expenses unjust.

(C) If the Motion Is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may
issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.

37(c)(1) FAILURE TO DISCLOSE, TO SUPPLEMENT AN EARLIER RESPONSE, OR TO ADMIT.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure;
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 (B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions

A party is entitled to demand the discovery of any matter that:

a. Is relevant to the claim or defense of any party;
i. Due to human imagination, this criterion is virtually without burden
ii. Entitled to material that is relevant and admissible in trial
iii. Entitled to information that "appears reasonably calculated to lead to the discovery of admissible evidence"
- R 26(b)(1)
b. Is not unreasonably cumulative , burdensome, or expensive; and
a. Requesting party can’t have already had ample opportunity for your own discovery
c. Is not privileged
ii. Attorney-Client
a. Can’t overcome. This privilege is absolute
b. Between attorney and client
c. communication between you and your client
d. about "law" - giving or receiving legal advice
e. Confidential. No strangers - has to be private
f. No tort or crimes
ii. Work Product
a. Documents and tangible things done Anticipation of Litigation
b. Opinion - Attorney Opinion work product is sacred
1) Can overcome if party shows the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their substantial equivalent by
other means
o Work Product Doctrine: -conditional
• Rule 26(b)(3):
 Redaction - Protection Against Disclosure. If the court orders discovery of those materials, it
must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of
a party’s attorney or other representative concerning the litigation.

Work Product HYPOS

Hickman/Work Product Problems

1. At the time of Hickman, Rule 26 did not deal specifically with the topic of trial preparation materials. It now does.
Read Rule 26(b)(3) and answer the following questions: Hickman only protects the work of lawyers; 26(b)(3) is broader
a. Does the doctrine apply to nonlawyers, such as insurance adjusters and investigators?
• Yes! (3)(a) - (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent)

b. What if a party or witness makes a written statement to the lawyer? Is that discoverable?
• If you make a signed statement then yes! 26(b)(3)(C)(i)
(C) Previous Statement. Any party or other person may,
on request and without the required showing, obtain the
person’s own previous statement about the action or its
subject matter. If the request is refused, the person may
move for a court order, and Rule 37(a)(5) applies to the
award of expenses. A previous statement is either:
(i) a written statement that the person has signed or
otherwise adopted or approved; or

c. What about factual information (e.g., the name of a witness), as opposed to mental impression—is that
undiscoverable if the facts were uncovered by a lawyer?
• Yes, the facts are not protected just because a lawyers found them (don’t have to give the documents, just
the facts)
• What is protected is what the lawyers do with the information
• No 26(b)(1) identity of persons - unless the info can be obtained from another source

2. Assume P was injured when struck by a bus owned by B Bus Co. P sued B. The litigation raises the following
discovery issues:
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a. Immediately after the accident, a vice president of B went to the scene and made a full investigation, including
interviews with witnesses and measurements of the accident location. He then made a written report to the directors of
B. Can P obtain the report? Would it make any difference if B has a claims department and the vice president is part of
that department?
• No - can likely be obtained herself and in preparation of litigation and may be privileged if they are
intended to be confidential records of the corporation. ….. But there may be another argument that this was only
done as a business purpose and not in anticipation of litigation.
• Yes - this report may not be prepared in anticipation of litigation since it can be used for other purposes and
are prepared in situations in which litigation is not foreseen.
 Employees' accident reports to claims department are discoverable

b. Preparing for trial, B’s lawyer hires a private investigator who runs up $10,000 in fees, and uncovers another
eyewitness to the accident. P serves an interrogatory asking for the names of all eyewitnesses, and B objects on the
ground of “trial preparation materials.” Must B disclose the witness’s name.
• Yes. They are only asking for facts. They are only asking for the names of witness
 Just because you hired an investigator, you cannot protect the facts that they uncover.
• 26(a) - if there is a witness that you may use, you must disclose that information to the other side

3. In Hickman, Fortenbaugh interviewed the witnesses and took notes but apparently did not ask the witnesses to write
out statements or tape-record the witnesses’ statements. Many lawyers will do so in order to have a basis for subsequent
examination or impeachment of the witness. (See Rule 26(b)(3)(C))

a. Boris is seriously injured in an automobile accident with Charles. In the hospital Boris is visited by an investigator
for Farm Insurance Co., which had insured Charles’s car. Boris thinks he gave a videotaped statement to the investigator
and knows that he talked to the investigator about the accident.
As the attorney for Boris,
(i) can you find out whether Boris made a statement?
 Yes 26(b)(3)(c)(i) - witness himself are entitled to a copy of his statement as a matter of right
(ii) if so, can you obtain a copy of the statement before Boris’s scheduled deposition next month?; and
 Yes 26(b)(4)(A) deposition may be conducted only after the report is provided
 They should give it to you unless, they go to the court and say can I wait until after deposition (ask
for a protective order that says, yes I have to provide the information, but I will give it at the deposition, or
after) - because you are trying to impeach the witness. Hoping to catch them by surprise to see if they lie.
(iii) if Boris did not give a statement, can you find out what he told the investigator?
 No, cannot be an oral statement 26(C)(i) & (ii)
 Yes, if the court says that this material has been "otherwise adopted or approved" 26(C)(i)

b. In Boris’s suit against Charles, Frank, a good friend of Boris, will testify on his behalf. Frank gave a written, signed
statement to Charles’s attorney but does not remember what he said. As attorney for Boris, you are not entitled to obtain
that statement under Rule 26(b)(3)(C). Can you nevertheless think of a lawful way to get it?
• Have Frank ask for it as a matter of right and ask him for it
• 26(b)(3)(c)(i)

4. What does it take to overcome a claim of work product? How special must the circumstances be?
• If the material sought was NOT prepared in anticipation of litigation or for trial
• If it is a routine report
• If the material is of substantial importance to the party seeking discovery
• If the party seeking discovery cannot obtain from another source the substantial equivalent of the
information sought

• Must show that the material sought is of substantial importance to its case; cant be minimally relevant

a. What if Fortenbaugh had interviewed the crew members in the hospital, and they had died before giving their
testimony to the agency inquiring into the accident?
• Yes, no other way of getting that information and it is of substantial importance
• Court will go through and remove any mental impressions

b. What if the crew members were still alive but there had been no public hearing on the accident, and the witnesses
claimed not to be able to remember events clearly?
• Argument for:

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  Probably as long as no mental impressions and legal theories
 Substantial need and inability to obtain equivalent material
• Argument Against:
 you had the opportunity to interview the witnesses, but just didn’t

DISCOVERY Hypos

Discovery Problems:

1. Albert alleges that Barbara “negligently collided” with his car; Barbara’s answer has denied negligence.

i. Albert’s lawyer has interviewed him, obtained copies of his medical and wage records, and has spoken with various
other potential witnesses. Albert’s lawyer intends to present a straightforward version of the case: Barbara ran a red light,
collided with Albert, who as a result lost wages and incurred medical expenses. A witness at the intersection will testify
that Barbara ran the light. There are, however, some soft spots in the case: Albert has a poor driving record and has
himself been cited for running red lights; his job situation has been precarious, and Albert thinks that his boss might testify
that he was about to be fired (thus reducing potential damages for lost wages). What disclosures must Albert make under
26(a)(1)?

ii. Witness info:

 The name, and if known, the address and phone # of the witness -

• He may have to produce other info it if it is requested…. The other info doesn’t go to his claims
• If you are not going to use it for your claim, then you don’t have to turn it over
• If you are going to use it for your claim or defense, then you have to disclose the info

iii. Now consider Barbara’s disclosures. Her lawyer has interviewed her and knows the name and address of a
mechanic who can testify about the maintenance of her car (he will say it was well maintained), her boss (with whom she
had a major argument just before the accident), and a bystander who saw the accident. The bystander, let us suppose, is not
the same on located by Albert. This witness is not an attractive one—a vagrant with a long history of minor drug arrests—
but he says he thinks the light was green for Barbara when she entered the intersection. Explain how each of these
witnesses might have information relevant to the lawsuit. Which of their names should Barbara’s lawyer supply at the time
appropriate for the disclosure required in Rule 26(a)(1)(A)(i)?

• Mechanic - name address phone

• Witness - info
• Not the boss - why? This does not go to her defense…

1. Suppose Albert has supplied her with all of his medical bills pursuant to Rule 26(a)(1)(A)(ii). Thereafter, he receives a
substantial new bill from the treating surgeon. What must Albert do (see Rule 26(e))?
• Must supplement or correct its disclosure - this info must be made know to the other party
• Or else sanctions

1. Assume Albert does not inform Barbara of the new surgeon’s bill, but its existence comes to light in a deposition of the
surgeon. Thereafter, Barbara seeks to block admission of the bill as part of the evidence on damages. How should the judge rule
(see Rule 37(c)(1))?
• Was the failure substantially justified? - probably not, so the judge is likely to grant the motion
• Don’t know what substantially justified is...
• Make party pay the costs

2. Your client, Baker, gives you a state court complaint from a state employing the current version of the discovery rules. The
plaintiff, Alice, alleges that Baker agreed to sell her his car, and then refused to go through with the transaction; Alice seeks
damages. Baker tells you that he and Alice discussed such a possibility, but that they never agreed. In response to your
questions, Baker tells you no one witnessed their discussion. You file an answer denying that there was a contract. You know
that Rule 26(a)(1) requires some disclosures.

1. On this state of the pleadings, what information would you have to prepare for disclosure?
a. Nothing - you are not using anything to help your defense

a. On this state of the pleadings, what would be the information you would be confident Alice would have to disclose
to you?

29
 • Damages computation
• Anything that may help our case, that is not privileged - facts
• Any witness that Alice may have ( but hypo says that Baker says no one witnessed their discussion)

2. Alice brings suit against Centerville Village, claiming that its police officers assaulted her during a political demonstration
one afternoon. Her complaint alleges that the assault “severely injured her.” The city attorney assigned to the case uncovers a
photograph of Alice, taken the night after the incident, showing her participating enthusiastically in a local dance contest. At the
Rule 26f conference with Alice’s lawyer, Centerville’s lawyer learns that she will contend that the police assault injured her leg.

a. Centerville’s lawyer would very much like to hold back the photograph—perhaps until a devastating cross-
examination of Alice. Must the defendant produce the photograph as part of the disclosures required under Rule 26(a)(1)
(A)(ii)? Think about what Centerville’s possible defense strategies might be and what role the photo would play in each of
them?

RULE: (A)(ii) - a party must, without awaiting a discovery request, provide to the other parties:
a copy — or a description by category and location — of all documents, electronically stored information, and
tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses, unless the use would be solely for impeachment;

• Depends - arguments to go either way

• No - if they are going to use the photo for impeachment
• But this is a risky strategy because you may lose the right to use this photo to support your defense.
• The better course is to go to the judge and say I will produce it, but I want to impeach her with this photo,
ask for a protective order so that you don’t have to disclose this photo until deposition

b. What is risk does Centerville run if it does not disclose the photograph (read Rule 37(c)(1)?
• Sanctions, and may not be allowed to use it
• If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed
to use that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity
to be heard:
(A) may order payment of the reasonable expenses, including
attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including
any of the orders listed in Rule 37(b)(2)(A)(i)–(vi).

c. Assume that Centerville does not disclose the existence of the photograph in the initial round of disclosures.
Thereafter Alice makes a Rule 34 demand that Centerville produce “all documents, memoranda, and reports relating to the
incident.” As attorney for Centerville, must you now produce the photograph?
• Is a photograph a document? Yes.
• No, may file an objection within 30 days - 34(b)(2)(C)
• If no objection is filed, and the document has been properly asked for, then yes you must disclose it.
• If they don’t, it is a ethical violation

a. Suppose Centerville produces the photograph in response to the Rule 34 demand. Can Alice seek sanctions? Of
what sort (read Rule 37(c))? Can Centerville argue that any failure to disclose initially is harmless because the evidence
eventually came to light?
• Yes -
• costs attorney fee's caused by the failure
• May inform the jury of the party's failure
• Harmless?
• It depends on where we are in the trial process
• The closer we get to trial the more harm it causes
• If it smells bad, the evidence may be excluded

1. Assume there is a contract dispute where the parties’ understanding of a clause is at issue. Assume that Plaintiff serves a
request for particular documents. Assume further that two of the documents sought are letters from Producer’s lawyer to
Producer, answering questions about the interpretation of the contract in question. Producer believes that both documents are
protected by the attorney-client privilege. How should Producer raise such a contention (see Rules 26(c) and 37(a))? What
tactical advantage might accrue from using Rule 26(c) rather than Rule 37(a)?

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 - Object and say that it is attorney-client privilege or work product
26(c) - may move for a protective order (forbid discovery or forbid inquires into certain mattes)
• Can forbid discovery
37(a)(1)- may move for an order compelling disclosure or discovery. The motion must include a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery
in an effort to obtain it without court action.
• Have to confer first

1. You represent DiChem, a small San Diego corporation whose business is assessing air and water quality for private industries
to determine compliance with environmental and occupational safety regulations. In the fall of 2006, DiChem advertised
nationally to fill the position of Director and Advertising, and interviewed several applicants. Charles Morris from New Mexico
won the job, sold his house, and came on board in December. Shortly thereafter, the company went though hard financial times
and laid him off.

Morris has sued DiChem and its president Eve Barrie, alleging that the company should have disclosed the precarious fiscal state to him
and had failed to do so. Eve Barrie tells you that neither she nor anyone else said anything at all about DiChem’s financial situation at
the interviews. She adds, “any management-level employee knows that the job depends on the company’s continued financial viability.”

When you ask for Eve Barrie’s complete file on the hiring of the director of Advertising, she gives you a meaningful look, and says,
“Shall I go through it first?” You smile back and say: “I need to know everything. Anything detrimental to our position will be covered
by a privilege, I’m sure.”

Back at your office, you go through the file and make notes on each item in it, using special firm letterhead on which is preprinted in
large capital letters, “Attorney Work Product.” You attach a separate sheet of this special letterhead, with your notes on it, to each item
in Barrie’s file.

Your heart misses a beat when you come to an undated scrawled note in what you have come to recognize as Eve Barrie’s handwriting.
It says, “If we ever get into a court fight, must decide how much to tell re: black hole—company collapse????” You make the following
note: “Item 5—looks like a possible damning admission that company knew they were in danger of collapse. Was it bad enough to
verge over into fraud? Did they misrepresent? Get associate to research this if it becomes relevant. Barrie is a smart cookie, but it may
be better not to ask her too many more questions until and unless we have to prepare her for deposition.”

Must you turn the notes over under Rule 26(a)(1)(A)? How will you respond if your opponent moves the court under Rule 26(b) for the
complete file on the hiring of the new director? Suppose the court orders disclosure of everything in the file; does that include your
memorandum attached to the Eve Barrie note? How will you protect your work? You don’t have to answer this in great detail…just be
ready to discuss.

1. Under 26(A) - you don’t have to turn this over at this point (Mandatory initial discovery) because you are not using it to help
our defense…. But we don’t know what our defense is going to be
a. If the other party makes a motion for it later, you may have to produce it
b. You should object - assert work product & attorney-client privilege
1. Attorney client privilege - Client thinks that she is covered by attorney-client privilege so that is why she
turned that info over.
2. Work product - notes, thoughts, theories of the case!
a. Ask for Redaction

Rule 56: SUMMARY JUDGMENT

56(c) SERVING THE MOTION; PROCEEDINGS. The motion must be served at least 10 days before the day set for the hearing.
An opposing party may serve opposing affidavits before the hearing day. The judgment sought 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 What do you do if there has been no discovery yet?
o Going to present things that we got out of discovery
• Not relying on the pleadings anymore
• Using evidence
o Summary judgment is tough to get
• Why would defendants do this then?
 Save time & money
 Risk factor with taking a chance on the jury
 Get the other side to show their evidence
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  You might win, so go for it. What is the harm
 Narrows issue for trial

MY RULE:
A party is entitled to judgment when there is no “genuine issues of material fact” and the undisputed facts warrant judgment
for the moving party as a matter of law. Issues of material fact are those that might affect the outcome of the suit under the governing
law. A material fact is an essential element of claim of defense. A genuine dispute is one which a reasonable jury could resolve against
the movant.
In addressing a motion for summary judgment, “the court must view the evidence in the light most favorable to the party
against whom summary judgment is sought and must draw all reasonable inferences in [its] favor” (Matsushita). Whether any
disputed issue of fact exists is for the Court to determine, but the court should not reach the question whether there is a genuine
dispute until it has evaluated the moving party’s showing to determine whether it suffices to justify pretrial scrutiny of the evidence.
The moving party has the initial burden of production demonstrating that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law (56c/Celotex). This must be satisfied before the burden shifts to the opposing
party. If the moving party has the burned of proof at trial, he must produce evidence of such strength that no reasonable jury could find
for the opposing party. If the moving party does not have the burden of proof at trial the moving party must either offer affirmative
evidence that negates an essential element of the opposing party’s claim or defense (Adickes), or must demonstrate that the
nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim or defense by “pointing
to” an absence of evidence. Pointing to cannot be a conclusory assertion that there is no evidence. The moving party must
affirmatively show the absence of the evidence. (Celotex).
A motion for summary judgment must be guided by the standard of proof that is required at trial. In most cases, that standard
of proof is “beyond a preponderance of the evidence.” In a case like Liberty Lobby, where malice was pleaded, the standard at the
summary judgment stage was a "clear and convincing" evidentiary standard in determining whether a genuine issue fact exists, that
is, whether the evidence is such that a reasonable jury might find has been shown with convincing clarity (Liberty Lobby). SJ cannot
be granted if the moving party’s evidence is merely colorable or not sufficiently probative.
If the moving party has not made the required initial showing, there technically is no burden on the opposing party to make
any showing in response to the motion, which should be denied. If the moving party meets his burden of production, the burden then
shifts to the non-moving party. When the moving party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts (Matsushita). The opposing party must come forward with
evidentiary material that established the existence of a triable issue. In the language of the Rule, the nonmoving party may not rest
upon the mere allegations or denials of his pleadings and must come forward with "specific facts showing that there is a genuine issue
for trial.” The opposing party can call the court’s attention to other material in the record that demonstrates the existence of a genuine
issue.
Policy: Summary judgment is a method for getting beyond the allegations of the pleading and examining evidentiary material
without holding a full-dress trial. If the evidentiary material shows that there is actually no genuine controversy that requires trial,
summary judgment can avoid unnecessary delay and expense in deciding the case.
I heart SJ: For more than a decade, it has seemed that the courts have become more receptive to deciding cases on summary
judgment. The Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole" and noted the it has an important role: With the advent
of 'notice pleading,' the motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses]
anymore, and its place must be taken by the motion for summary judgment. [Celotext]
o But what about the Iqbal/Twombly standard?

What kind of evidence does the court consider on summary judgment? They can look at the requests for production of documents.
Those documents form evidence that you can use at this stage. The depositions will create transcripts that you can use as evidence at
this stage. You can also use interrogatories and requests for admissions. Most importantly, affidavits are very important. At minimum,
you as the attorney will have to write an affidavit that the copies you submitted as evidence were “true and correct” copies of the
documents given to you.

STEPS OF ANALYSIS:
1. Has the moving party made a sufficient initial showing?
If the moving party would have the burden of proof on the issue at trial, he must initially produce enough evidence to show that
no reasonable jury could find for his opponent. If the moving party would not have the burden of proof, he still must make an
initial showing of his opponent's lack of proof. If the initial showing is insufficient, the opposing party need not submit any
opposing proof, and the motion should be denied.

2. Was the opposing party given notice and an opportunity to respond?

If the initial showing was sufficient, summary judgment would still be improper unless the opposing party was given notice of
the motion and an opportunity to respond. Note that the circumstances sometimes justify delay in the decision in order to give
the opposing party an opportunity to gather evidence, especially if the motion is made early in the case or before there has been
substantial discovery.
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 3. Is there a triable issue?
Assuming the moving-party's initial burden was met and the nonmoving party was given an opportunity to respond, the court
must look at the evidence in the light most favorable to the nonmoving party to determine whether there is a genuine issue of
fact to be tried. If the moving party would have the burden of proof at trial, the motion should be granted only if the evidence is
so strong that a reasonable jury could find only for the moving party. If the moving party would not have the burden of proof at
trial, the court should grant the motion only if the opposing party fails to come forward with sufficient evidence to support a
verdict in his favor.
• Also note that summary judgment may be partial (i.e., only as to some issues or some parties). Denial of
summary judgment is not immediately appealable. Grant of summary judgment, however, may be immediately
appealable if it results in a final judgment. On review the appellate court has plenary power; it need not give
deference to the trial judge's decision.

2. Pleadings and Motions Compared

Summary judgment differs from pleadings motions attacking the sufficiency of claim or defense in that summary judgment
allows the court to look at evidentiary material. Recall that pleadings motions look only at the face of the pleading an test only
its legal sufficiency. Usually, it is said that consideration of any material beyond the face of the complaint is forbidden on a
pleadings motion, or such consideration may convert the motion into a motion for summary judgment. [FRCP12(b)—on motion
to dismiss for failure to state a claim, if materials outside pleadings are presented and not excluded by court, motion is to be
treated as one for summary judgment.]
a. Relevance of pleadings to summary judgment
The pleadings delineate what is in controversy in the case. Thus, if certain allegations have been admitted, those admissions
may form part of the basis of summary judgment.

b. Reliance on pleadings in respond to summary judgment

An opposing party may not rely on the allegations in her pleadings to defeat a summary judgment motion.

Timing
The summary judgment motion can be, and normally is, decided before trial. A defendant may move for summary judgment at
any time and a plaintiff may do so 20 days after commencement of the action.

Nature of material considered

The summary judgment motion is based essentially on pretrial written submissions. However, summary judgment may be based
on live testimony from depositions, which is usually recorded in a deposition transcript or by videotape.

Summary judgment may be more difficult to obtain

In many courts, it is said that summary judgment is more difficult to obtain than judgment as a matter of law—i.e., it must be
clearer to the court that the case can reasonably be decided only one way. However, it appears that courts are gradually
becoming more accepting of summary judgment.

Trend Favoring Use of Summary Judgment - I heart SJ

For more than a decade, it has seemed that the courts have become more receptive to deciding cases on summary judgment. The
Supreme Court has observed that "summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as
an integral part of the Federal Rules as a whole" and noted the it has an important role: With the advent of 'notice pleading,' the
motion to dismiss seldom fulfills this function [isolating factually insufficient claims or defenses] anymore, and its place must
be taken by the motion for summary judgment. [Celotext Corp. v. Catrett]
o But what about the Iqbal/Twombly standard?

BURDEN of PRODUCTION - initial showing requirement

(1) Opposing party with burden

To obtain summary judgment, such a moving party would have to make an initial showing of the insufficiency of the
evidence of his opponent's case. Only if such an initial showing is made does the opponent then have the burden of
bringing forth sufficient evidence to show that there is a genuine issue for trial.

If the moving party would have the burden of proof on the issue at trial, he must initially produce enough evidence to show that
no reasonable jury could find for his opponent. If the moving party would not have the burden of proof, he still must make an
initial showing of his opponent's lack of proof. If the initial showing is insufficient, the opposing party need not submit any
opposing proof, and the motion should be denied.

33
 (2) Distinguish-moving party with burden
If the moving party has the burden of proof on the issue raised at the summary judgment stage, making that showing
before trial does not represent an additional burden on the party because the party would have to put on such evidence at
trial to justify a directed verdict. However, such a party must make a compelling case for entry of summary judgment,
because a trial should be held if a reasonable jury could disbelieve the moving party's proof.

Standard for Grant of Summary Judgment

1. Basic Standard
The court is to grant summary judgment when it determines that "there is no genuine issue as to material fact" [FRCP 56(c)], or
that there is "no triable issue as to any material fact."

2. Relation to Standard for Judgment as a Matter of Law

The United States Supreme Court, in Anderson v. Liberty Lobby, has stated that in federal court the standard for entry of
judgment us the same at the summary judgment stage as at the judgment as a matter of law stage. This makes it appropriate to
focus on whether the moving party has the burden of proof on the issue raised by the summary judgment motion. The burden of
pleading various issues depends on whether they are considered elements of the claim or affirmative defenses. Usually, the
part who must raise an issue in the pleadings must also prove it. The burden of proof at trial does not shift, but the burden of
production at Summary Judgment does.

a. Moving party with burden of proof

If the party moving for summary judgment has the burden of proof on the issue raised by the motion, summary judgment
should be granted only if the evidence favoring the moving party is of such strength that the jury could not reasonably
disbelieve the moving party's evidence.
b. Opposing party with burden
If the party moving for summary judgment does not have the burden of proof on the issue raised by the motion,
summary judgment should be granted only if the opposing party fails to present sufficient evidence to permit a jury
reasonably to find for him. Unless, the opposing party comes forward with sufficient evidence to support a verdict in her
favor, summary judgment should be entered un favor of the moving party.

The court's evaluation process must be based on a case-by-case basis. There are a number of general principles that guide SJ.
a. All reasonable inferences indulged in favor of the nonmoving party
The court is to make all reasonable inferences in favor of the opposing party, and to view the evidence in the light most
favorable to that party.
b. Court may "not" weigh evidence
The court is to determine whether there is a genuine dispute; if there is, it may choose between two versions of events
and grant SJ to the party whose version seems more persuasive. [ issue of material fact

Burden of proof at trial:

o Does not shift
Burden of production at summary judgment:
o Shifts

Movant's Initial Burden of production. Non-Movant's Burden of Production.

To shift the burden In response, non-movant must….

If moving The movant must produce evidence demonstrating… there Non Movement must produce evidence showing… there is a
party has is no genuine issue ("any reasonable jury would find for genuine issue (a reasonable jury could find for me)
burden of me") 1. New evidence/Ignored evidence
proof at 2. Rehabilitate or attack
trial 3. More time 56(f)
i. Ask for more time for discovery
1. I need more time because I have to
do a certain amount of discovery for this
case
2. Court doesn’t have to grant this
motion

If non- Adickes:
movant Produce evidence negating the claim or defense of non-
has burden movant
of proof at
34
trial Celotex: "pointing to"
o Opinion does not over rule Adickes BUT they changed
the characteristic around
o Two ways the moving party can carry it's burden:
1. Submit evidence that negates an essential
element
2. Demonstrate that the nonmoving party's
evidence is insufficient to establish an essential
element of the nonmoving party's claim
• Point to an absence of evidence
something, but cannot be a conclusory
assertion that there is no evidence
• Must affirmatively show the absence
• Don’t have to do Adickes, you can do
Celotex
o I heart summary judgment
• Summary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a
whole, which are designed "to secure the just,
speedy and inexpensive determination of every
action."

• But with the advent of "notice pleading,"

the motion to dismiss seldom fulfills the function of
striking insufficient claims or defenses any more,
and its place has been taken by the motion for
summary judgment.

Procedure
1. Initial Showing
Analytically, the court should not reach the question whether there is a genuine dispute until it has evaluated the moving party's
showing to determine whether it suffices to justify pretrial scrutiny of the evidence.
a. Moving party's burden
The moving party is to demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." [Fed. R. Civ. P. 56(c)]
(1) Moving party with burden of proof
If the moving party has the burden of proof, he must produce evidence of such strength that no reasonable jury could find
for the opposing party.
(2) Moving party without burden of proof
If the moving party does not have the burden of proof, the matter is more complicated.
(a) Early view - ADICKES
Relying on a decision of the Supreme Court [Adickes v. S.H. Kress & Co.], some lower courts took the position that a
moving party without the burden of proof had to make as strong a showing as one with the burden of proof to invoke
summary judgment.
 The moving party must produce evidence negating the claim.
 How do you prove a negative?
 In Adickes - Didn’t foreclose the possibility that the police officers were in the store.
 Thought is that the evidence must be admissible at the time of summary judgment (Celotex - says that if
you later believe that the evidence can become admissible, you can use it at summary judgment)
(b) Current view - CELOTEX
Celotex Corp - rejected the early view. However, the exact requirements in this circumstance are unclear, owing to
disagreement within the Court on the proper formulation.
1) Mere conclusory assertion
It appears that a bald assertion that the opposing party lacks sufficient evidence to support his case is not
sufficient. [Celotex Corp. v. Catrett, supra (White, J., concurring)—"It is not enough to move for
summary judgment . . . with the conclusory assertion that the plaintiff has no evidence to prove his case"]

35
 Rationale: "Such a 'burden' of production is no burden at all and would simply permit summary
judgment procedure to be converted into a tool for harassment." [Celotex Corp. v. Catrett, supra
(Brennan, J., dissenting)]
2) Initial responsibility of informing court of basis for motion
The majority in Celotex stated that the moving party has the initial responsibility of informing the court
of the basis for its motion; the party must identify those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact. However it is unclear how much more than a
conclusory assertion this is designed to require
3) Prima facie showing
Justice Brennan, dissenting in Celotex, urged that the moving party should have to "make a prima facie showing
that it is entitled to summary judgment."

(c) 2 Methods of Making showing

RULE: There are two methods to make a proper showing for SJ. (1) The moving party can offer affirmative evidence
that negates an essential element of the opposing party's claim or defense, or (2) Demonstrate that the nonmoving
party's evidence is insufficient to establish an essential element of the nonmoving party's claim or defense by pointing
to an absence of something. "Pointing to" cannot be a conclusory assertion that there is no evidence. The moving party
must affirmatively show the absence of the evidence.
1) Affirmative evidence that negates an element - ADICKES
 Case:
In Adickes, The Supreme Court reversed summary judgment that was found in favor of the
defendant store in a civil rights action despite plaintiff's failure to opposes the motion with
admissible materials. The case arose from the plaintiff's arrest for vagrancy. Although the
defendant properly denied a conspiracy, evidence in the record that the arresting police officer had
been in defendant's store permitted the inference that he and the defendant had conspired to deny
the plaintiff service, creating a genuine dispute of material fact. All the defendant needed to do
was to produce some sort of evidence that the police officer had not been in the store, to negate the
conspiracy claim.
• Must produce evidence negating the claim or defense of non-movant
2) Insufficient Evidence - CLEOTEX
 Case:
In Celotex, plaintiff claimed that her husband died due to exposure to asbestos that the defendant
manufactured. Defendant moved for summary judgment on ground that there was no evidence in
the record linking its products to plaintiff's husband's death. The court held that summary
judgment should not be granted because plaintiff was able to point to material in the record that
indicated that at trial she would have a witness to support her claim—a letter from an official of a
former employer of plaintiffs husband indicating that company records showed that plaintiff's
husband had been exposed to defendant's products.

• In deciding Cleotex, The Supreme Court added another method to make the showing
required under SJ.
• If the thrust of the motion is that the opposing party has no evidence, however, the
showing should reliably indicate that. Thus, the moving party should be able to point to discovery
calculated to elicit from the opposing party any evidence he had to support his case and then
demonstrate that this evidence is inadequate. Such a showing invites the argument that the
opposing party needs more time to gather facts. [Rule 56(f)]
Celotex: "pointing to" langueage
• Opinion does not over rule Adickes BUT they changed the characteristic around
• Two ways the moving party can carry it's burden:
1. Submit evidence that negates an essential element
2. Demonstrate that the nonmoving party's evidence is insufficient to
establish an essential element of the nonmoving party's claim
• Point to an absence of evidence something, but cannot be a
conclusory assertion that there is no evidence
• Must affirmatively show the absence
• Don’t have to do Adickes, you can do Celotex

To meet the 2nd part of Cleotex, Kreiss would have had to file an
interrogatory asking the P Who are your witnesses that were in the
store?
• But the P would have just given the names of witnesses, the
students or employees in the store

36
 • And this is all that is required under discovery
• Kreiss still wouldn’t have been able to prevail on SJ

b. Opposing party's burden

(1) If Initial showing not made

If the moving party has not made the required initial showing, there technically is no burden on the opposing party to make any
showing in response to the motion, which should be denied.
(a) No advance determination of sufficiency of initial showing
However, the opposing party is not entitled to advance notice of the court's attitude toward the sufficiency of the moving
party's showing Thus, to be prudent, the opposing party should submit opposing evidence unless he is absolutely sure of the
insufficiency.
(b) Attacking showing
The opposing party can call the court's attention to other material in the record that demonstrates the existence of a genuine
issue
In Celotex, the court held that summary judgment should not be granted because plaintiff was able to point to material
in the record that indicated that at trial she would have a witness to support her claim—a letter from an official of a
former employer of plaintiffs husband indicating that company records showed that plaintiff's husband had been
exposed to defendant's products.
(2) Initial showing made
If the moving party has made the initial showing, the burden. is on the opposing party to come forward with evidentiary
material that establishes the existence of a triable issue, i.e., sufficient evidence to support a jury verdict in his favor

Coleman's thoughts on SJ:

• Is this standard wrong?
• She hasn’t fully decided
1. Agree: If the plaintiff doesn’t have evidence to support their claim, then why are we even in trial?
 If the plaintiff hasn’t had enough time for adequate discovery, then they have rule 56(f) to ask for more time
2. Disagrees: When do we want to force our Plaintiff to show their hands?
 This ruling is favored for defendants. Makes the burden for the Plaintiff high.
 SJ is giving the judge too much discretion to blur the line of law and fact
 This favors big corporations when they fight small individual parties
 Is the job of the Federal Rules to even the playing field?
 Maybe not
 What about the small parties that cannot afford discovery

Do JUDGES DECIDE FACT?

Anderson v. Libby
o Must grant SJ if there can be but one reasonable conclusion as to the verdict
• Dissent:
o Made because they judge is weighing evidence

Matsushita Electric Industrial Co. v. Zenith

• The Court implied that summary judgment is proper even when there are equally plausible competing inferences.
• Where the record taken as a whole could not lead a reasonable rational trier of fact (jury) to find for the nonmoving party,
there is no genuine issue for trial

Bias Case: - court granted SJ

(1) Drug Use - Affirmed

• The ∆s provided evidence from two witnesses that they had seen Bias use cocaine on numerous occasions prior to his death
o estate did not try to impeach these witnesses and
 instead provided general statements from his parents and coach and drug test results that suggested no drug
use.
 However, this evidence failed to contradict the specific evidence that 2 witnesses saw him using drugs.
 They should have deposed these witnesses or should nhave provided conflicting evidence from others who
would have been at those parties.
(2) Insurance Policy - Affirmed
• The ∆s provided evidence that every insurance company inquired about drug use for the policy Bias wanted

37
 • the estate only showed that insurance companies did not ask about drug use in every stage of the process and failed
to show that an insurance company would have insured him without asking about drug use at all.

HOLDING:
• The court held that the estate was not entitled to reach the jury merely on the supposition that the jury might not believe
defendants' witnesses.
• The estate failed to do more than show that there was some metaphysical doubt as to the material facts, the district court
properly concluded that there was no genuine issue of material fact as to the insurability of the player, a drug user.
o The estate didn’t rebut the ∆s specific evidence with specific enough evidence of their own

2 factual issues:
i. Prior Drug Use
1. ∆ used Affirmative Evidence for their burden standard
a. Friends/teammates saw him
2. ∏
a. Coach
b. Drug results
3. Court Says:
a. Specific evidence was marshaled by the ∆'s, but the ∏'s evidence did not address the specific point, they
only provided
b. ∏ should have deposed the witnesses or offered testimony of other friends or teammates of Bias

ii. Insurance Policy - Would any insurance co give a policy to a drug user
1. ∆ used Affirmative Evidence for their burden standard
a. Every insurance policy that exist 1986 would at some point would inquire about drug use
2. ∏
a. Not all companies inquire about prior drug use at certain particular stages in the application process.
Court Says:
a. Specific evidence was marshaled by the ∆'s, but the ∏'s evidence did not address the specific
point, they only provided general evidence
b. Didn’t create a genuine issue of fact

• Is the judge here deciding fact?

• Yes - he is making inferences about habitual drug use. He may be right, but this feels a little fact based. An all inferences
should be made for the nonmoving party. There was enough here for a jury to decide.
o Bias family was not aware of Biases drug use
• Judge is assuming that habitual drug users hide their drug use
 But how does he know this?
o Bias pasted drug tests
• Habitual Users can pass drug tests
 But how does the drug know that?

• Is the problem with SJ? Or maybe with the substantive law

• So do we go after the legislature to change the substantive law
o Example: woman lost racial harassment case because there were only 3 issue of racial epiphyte
• So do we want juries to come back into play and decide these issues?

Catrett v. Johns-Manville Sales Corportation

• The decedent installed asbestos fireproofing products. The manufacturer contended that the widow failed to show that the
decedent was exposed to any of its products.
o In opposition to the motion, the widow submitted a letter from an executive of decedent's former employer
describing decedent's use of a particular asbestos product. In response to interrogatories, the widow listed the
executive as a witness.
• Holding: The court held that the manufacturer was not entitled to summary judgment because the record contained sufficient
evidence to create a genuine issue of material fact with respect to the decedent's exposure to the particular asbestos product.
• The court found that the record reflected a direct link between the manufacturer and the product because
(1) the letter reflected knowledge of the decedent's exposure to the product and that its maker was a corporation now
owned by the manufacturer;
(2) the author of the letter could testify to the facts contained therein; and

38
 (3) the manufacturer submitted documents recording its sale of the asbestos product to decedent's employer during
the period of his employ.

Type of Evidence Content (what does it prove) Admissible?

1. Hoff letter 1. Mr. C worked for AJ 1. Yes - waived at District Court level
2. Mrs. C's answer to 2. Mr. Hoff will testify 2. Yes - waived
interrogatory 3. Firebar was sold to AJ • And admissible if we can see out
3. Purchase Orders 4. Cleotex is the successor of way to admissibility
4. Celotex answer Panacon 3. Yes - defendant's own admission
interrogatory • Cleotex is liable for all of 4. Yes
5. Workers comp Panacon 5. No
testimony 6. No
6. Insurance Letter

These standards put more pressure on SJ standard. - way more reliance on the paper record

• Policy: Is discovery bad?

o Do these standards put unfair pressure on the party w/out the evidence?
• Think about the little guy
o Or is this a lazy lawyering standard?
• In Cleotex, she has 2 yrs… but is that enough when you go up against
• SJ is not really rule based anymore. It is almost form language

Trial By JURY

Civil cases:
o There is no guaranteed right to a jury trial
o 7th Amendment gives the right to a jury trial.
o Why do we care? Everything that each party does is as if there is a jury trial
• This affects how the parties behave
• The threat of a jury trial may make the parties behave

Pro-Jury Con-Jury

Judge not representative of the population • Not representative of the population

White men o Not diverse
Judge/Jury decide on merits match • Juries decide off of emotion
#'s temper biases o Influenced off of subjective prejudice and passion
Higher #'s = better truth • Juries are not law folks
Civil participation • Inefficient
Juries are not law folks o No training
Don’t want lawyers deciding your fate • Long and complex trials are problematic
Collective recall • Attention span
12 people putting their memories together • High profile
o Different jurors remember, and make available to all, • Group think
different items of the trial so that the jury as a group o Can squash good ideas
remembers far more than most of its members could as • Nullification
individuals • Jurors may not want to be there so may not fully participate
Well rounded knowledge or may decide fast to go home
Common sense • No Predictability
Judges less of ∆ focus
Juries are not part of the government
Less corruption
Nullification
Every case you have a blank slate
Not a judge who comes in with biases

39
Legitimizes democracy
People take their civic duty seriously

CASE:
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry
Issue: Does an employee who seeks relief in the form of back pay for the union's alleged breach of its duty of fair representation have
a right to trial by jury? Yes.

Two step test:

a. Historical Test
i. Compare the action to actions historically brought in England prior to the merger of the courts of law and
equity.
ii. Is this issue one that is like a case that would have been decided when the 7th Amendment was adopted
iii. Find analogous cases from history

b. Functional test
i. Are the remedies monetary or equitable in nature?
ii. Examine the remedy sought: legal= jury; equitable= judge.
The court says that the second inquiry is more important. Under the first part it is unclear. Under the second part
the court says it is legal.
Holding:
• The remedy of back pay sought in the action was legal in nature. Therefore, the employees were entitled to a jury trial on all
issues presented in their suit. The employees' action encompassed both equitable and legal issues. To recover from the union, the
employees had to prove that their employer breached a collective-bargaining agreement and that the union breached its duty of
fair representation. The relief the employees' sought was not restitutionary, and therefore it was not equitable. The back pay was
not money wrongfully held by the union, but wages the employees would have received from their employer had the union
processed their grievances properly.
• the right to a jury trial provided by the 7th Amendment encompasses more than the common law forms of action recognized in
1791, but rather any lawsuit in which parties’ legal rights were to be determined, as opposed to suits which only involve equitable
rights and remedies.

• Usually always have the right to a jury trial, unless the remedy is strictly equitable or the nature of it is strictly
equitable
• You can waive a jury trial; you have to demand it... and you can choose to have a bench trial
•
Equity vs. law (tension between jury and judges)
• Common law - all judge made law
• Sometimes money does not solve your problem
• The equity courts were run by judges, came up with resolutions other than money:
 Specific performance
 Injunctions
 Making someone do something
• Now courts are dealing with law, and equity, and congressional statutes
• Step 1 historical test
• Step 2 is the functional test (this is the more important test)
 The remedy
 Usually always have the right to a jury trial, unless the remedy is strictly equitable or the nature of it is
strictly equitable
• You can waive a jury trial; you have to demand it... and you can choose to have a bench trial

40
Hypotheticals

My opponent files a 12(b)(6) motion for failure to state a claim. The court denies the motion. Then they file a 12(b)(3) motion to
dismiss for improper venue. What do you do? They can’t file it! They’ve already waived that defense due to the combination of
12(g) and 12(h)(1). So I respond to this by filing a motion to deny the 12(b) motion on the grounds that it’s been waived by 12(g) and
(h)(1). Nothing happens on its own! You must raise the issue, or else you can never raise it on appeal (unless it’s subject matter
jurisdiction).

Say the other person files the 12(b)(6) and it gets denied, but then they file a 12(b)(7) for failure to join an indispensable party. This is
technical. What can we do? They can raise the defense, but they can’t make the motion. The issue is still alive, based on 12(h)(2),
which tells us that we can still raise this. But 12(h) also says that the issue can’t be raised in another Rule 12 motion. It must be
raised in a different way, like in a judgment on the pleadings or later on at trial. Realistically, the judge will probably be willing to
recharacterize the motion as a motion for judgment on the pleadings. We don’t want to boot people out of court for labeling their
motions wrong! That’s the whole point of the Federal Rules!

Say the 12(b)(6) is denied, and then they move for the 12(e) motion for a more definite statement. Is that valid? Nope. 12(g) says
that you have to raise this objection along with your other Rule 12 motions. So you already waived your 12(e) motion, it will be
denied. But what if they had their 12(b)(6) denied and then tried to do 12(b)(5). No good, under 12(g) and 12(h)(1). 12(g) says bring
them all at once or lose them! What if they had their 12(b)(6) denied, but then they come back with 12(b)(1)? The defense is
preserved! Can they do the 12(b)(1) motion? No, they can raise the defense, but it must be done in some other form. By practice, the
courts allow you to raise this issue by motion, labeling it something different, typically judgment on the pleadings or summary
judgment.

What if the other side just goes ahead and files a complete answer? Then they want to move to dismiss for improper venue. Can they
do it? Nope! Rule 12(h)(1) says that the defense is waived if it’s omitted from the answer. 12(g) doesn’t say anything about an
answer! It only says that if you make a Rule 12 motion, you waive everything else.

Think of Rule 12 this way: you receive a complaint. Here’s what you should do: think about the universe of possible things you might
be able to say about the complaint. Do you have a plausible subject matter jurisdiction argument? What about personal jurisdiction?
What about venue? What about process or service of process? Is there a claim? Are there parties that need to be joined? Could you
get judgment on the pleadings? Think about all the stuff. Then you have to figure out what you must do now in order to not waive it.
Can you save some of the stuff for a motion for summary judgment under Rule 56? You can present challenges in a lot of different
ways. There are strategic choices that you can make, and there are bad choices you can make. The Rules are designed to encourage
you to do certain things first. If you don’t do them first, you’re going to lose them. You must use these defenses either before your
answer or in your answer. If you make a Rule 12 motion, you lose everything else unless it’s saved by Rule 12(h). That part
explicitly gives us the hierarchy.

Rule 15 tells you that you can amend your pleading once before the answer comes back. But that doesn’t help the defense. If you
notice your mistake quickly, you’ll be able to catch it. But the amendment option won’t help you much in general.

Denials

So we have to do our answer 20 days or later. In the answer, we’ll do denials and affirmative defenses. Denials are back in Rule 8.
You can either admit or deny the averments. If you don’t have enough information and you’re not sure, you can say that too. When
you can only admit or deny part of the allegations, you must do so piece by piece. That’s where the case comes from, and this is why
you try to delay doing an answer. It’s a painstaking process! If you fail to deny, you automatically admit! So be careful!

The end result here is that the court requires that there is a deemed admission that PPI is the owner of the forklift, which means,
essentially, they’ll be subject to liability if it can be proved that they were negligent. The judge gives us several reasons for this: (1) It
was an ineffective denial under the Rules. A proper denial would have broken down the component parts, which would have been a
signal to the plaintiff that the plaintiff sued the wrong party. The plaintiff could have then amended his pleadings. (2) The judge finds
that there was no bad faith. This is often a consideration when judges decide what to do on the pleadings. What really underlies this
case is the party in interest here: the insurance company, which insures both PPI and CCI. As a practical matter, neither defendant
will pay the judgment. The insurance company will pay. So it doesn’t really matter who gets sued! The liability will pass through.
But you can’t ignore all the Federal Rules of Civil Procedure to get to that result: so the judge says that it’s an ineffective denial. But
we can see how this fact colors the procedural ruling. It seems like a harsh penalty, but in reality it may not be since the insurance
company pays either way!

Joinder

Rule 18 tells us that they can join as many claims as they want against the same person! So if you’re just looking at the Federal Rules,
there’s no problem.

41
Joinder of parties

Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you. You call a friend who picks you up and takes
you to class, but then you and your friend get hit by an Upper Arlington school bus. Could you file both claims against the city of
Upper Arlington together? Does this arise out of the same set of facts? Just because you have a common defendant doesn’t typically
mean that you’ll be able to join your claims together. There are some limits on joinder of claims and parties. These transactional tests
that were in force in the claim rules are more rigid when we look at the party side. Here, we had two separate accidents. Unless
you’re alleging a city policy that they only hire negligent people, you would have to do two separate suits..

Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation. You want the claims joined
so you can see a pattern of bad treatment by a common defendant. You need multiple defendants to be able to testify! Here, the
plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases. They don’t want to screw up and then
have to try the whole case over again. This is unusual, though. The Court of Appeals doesn’t have to accept the interlocutory appeal.
But it did here.

Misjoinder doesn’t lead to the dismissal of the actions, but rather severing them and then letting them proceed separately. The court
can also use Rule 42 to do this: it allows for both consolidation and separate trials. It’s best considered as an efficiency rule.

In general, Rule 20(a) isn’t that active a rule in federal litigation today. It’s a very liberal rule that allows you to join people together.
There isn’t a lot of litigation over this rule. There are a lot of tools to sort through the complexities of this rule without litigation.

RULE 14

Impleader is not to be confused with interpleader or intervention. The impleader rule, Rule 14, doesn’t have a lot of controversy
either. This case talks about who the defendant can bring in, and we usually think of this rule as a defendant’s rule. A defendant, in
Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”. The key is that you can only implead them
under Rule 14 if the liability is derivative. You don’t have to admit that you’re liable, and Latco probably said they weren’t. But they
said that if they are liable, the liability goes to the third party.

This is most often seen in an insurance case. If you’re responsible for an accident and get sued but you’re insured, you’ll implead the
insurer. This is so common that the insurance company usually comes in directly and controls the litigation because they’re the ones
who will ultimately pay. Can ITW implead into this case? The court lets them in. There’s a bunch of stuff about Alabama tort law,
but we won’t get into that.

Andy gets assaulted by Blair, and Blair’s defense is that it wasn’t him that did it, but Blaine. Can Blair implead Blaine under Rule 14?
This is not derivative liability. This is no liability! Blair claims a defense, and can put on evidence that the other guy did it, but you
can’t implead him. Blaine should be a co-defendant or alternative defendant.

Consider the original set of facts. Could ITW implead the steel company that provided the steel for the nails? Let’s check the Rule: is
there any reason why we couldn’t do this? The Rule is designed to bring in parties to whom you may be liable derivatively. It’s an
efficiently rule. Is the “nail as to steel manufacturer” lawsuit any different than “chicken coop as to nail”? No! You can string these
along for as long as you want as long as you have a derivative liability relationship. But the court can still choose to sever these cases
if they think that’s most fair and efficient. But maybe “bad chicken coop, bad nails, bad steel” is an efficient trial package.

What if we have a counterclaim by Latco that Price never paid for the chicken coop? Can they bring the counterclaim? This is like
Plant. Is not paying for the chicken coop related to the cause of action for defective production? We look at our logical relationship
test, whatever that means, and it looks like it’s the same transaction. The coop isn’t being paid for because it’s defective, so the
counterclaim would probably be okay under Rule 13. It’s debatable, though. Could the farmer turn around and implead the bank for
failing to pay the bills? Sure, it can be done under Rule 14(b)! It’s a lot shorter than 14(a), but a plaintiff can bring in a third party
when a counterclaim is asserted against the plaintiff. It’s basically just a reciprocal rule. That’s a perfectly good example of
derivative liability.

Some of these claims will get in under supplemental jurisdiction, but others will fail due to poor drafting, oversight, or both! These
situations are pretty much the same, really. If we erase the defective coop claim and have Latco sue on the unpaid bill as to the
plaintiff, Price is acting the same way in that lawsuit as the defendant as he is here as the plaintiff bringing in a third-party defendant
related to the counterclaim.

Complex joinder

Let’s do some problems to help set the stage for these issues and how they play into the supplemental jurisdiction statute. Say we
have a single plaintiff who buys a car from a dealership. He thinks it’s defective. He sues both the dealership and the manufacturer.
There’s nothing fancy about the lawsuit. It’s a single cause of action with one plaintiff and multiple defendants. The plaintiff says:

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“One of these two defendants or a combination of the two is liable.” Let’s say the dealer wants to file a claim of indemnity against the
manufacturer. Maybe the manufacturer is contractually obligated to indemnify the dealer. The dealer can file a cross-claim! Rule
13(g) lets you do it. Rule 14(a) would have worked if the manufacturer hadn’t already been in the lawsuit. Impleader could bring
them in as a third-party defendant.

What if the manufacturer wants to raise the claim that the defect was the dealer’s fault and not their fault? They just file their Rule
8(b) answer, where you put your denials and defenses. There’s nothing else special that you have to file. You’re just denying your
own liability. What if the manufacturer wants to assert a claim for non-payment of other vehicles other than the one that’s allegedly a
lemon? The only way that the manufacturer could make this as a cross-claim would be to use 13(g), but there’s no transactional
relationship! They have to file a separate lawsuit. Can the dealer countersue the plaintiff for not paying for the car? Yes! You don’t
need the same transaction or occurrence, depending on whether it’s a permissive or compulsory counterclaim. If it’s a permissive
counterclaim, you can do it under 13(b), which doesn’t require anything except that you have any claim against the opposing party. If
it were a compulsory counterclaim, then the dealer would have to bring it or risk losing it under preclusion doctrine under Rule 13(a).

Why wouldn’t Rule 18 help us? It says that you can join as many claims as you have against anybody you want! The Rules are a
system. Even though this Rule says that you can bring any cross-claim you want, you must read this Rule as being limited by other
Rules that add more specificity. The specific always trumps the general. If this was the only Rule you were looking at, you would
screw up a lot! You have to view the Rules as a system and be guided by the principles that are involved in the construction of the
Rules themselves. You want to bring claims and parties that seem to come out of the same events together because it appears to be an
efficient trial package. The only problem that messes this up is if you have jurisdictional issues that make joinder cumbersome.

Owen Equipment & Erection Co. v. Kroger – Yeazell starts with the Circuit case to work us up to the Supreme Court case. What’s
going on in the underlying lawsuit? Kroger was employed by a steel company. They were moving a crane, and he got electrocuted
and he died. The widow, Mrs. Kroger, sues for wrongful death. Who can we sue? We ought to be able to sue somebody. We could
sue the employer! That would be a great option! He could sue the Omaha Public Power District, which owns the lines and sold them.
Then there’s the people who leased the crane, Owen. Everybody would think to sue the employer first, but it’s precluded as a matter
of substantive law by worker’s compensation. It was an on-the-job injury, which is part of what state tort law does. Who would we
rather sue between Owen and Omaha Power? Who is more involved in these events? The plaintiff’s lawyer chose to sue Omaha
Power. Why did the plaintiff make that decision? They ultimately bring a claim against Owen. Maybe the facts weren’t as fully
developed when the plaintiffs brought the suit, or the plaintiffs’ lawyers didn’t do their homework.

What does OPPD do? They implead Owen. The suit was filed as a diversity action. Omaha and Kroger were from different states.
There was no subject matter jurisdiction problem. Owen gets involved under Rule 14. The idea is that if OPPD has any liability at all,
it will pass through to the crane operator, who is ultimately liable for the injury caused. At the time the impleader action was filed,
everyone thought that Owen was a corporate citizen of Nebraska. What messes things up is that once Owen gets brought in, the
plaintiff amends to add a claim directly against Owen. Owen responds to the third party complaint, admits that they are a Nebraska
corporation, but they deny every other allegation. It’s a truthful but not forthcoming answer. Two years later, it’s discovered at trial
that Owen has its principal place of business in Iowa!

We have jurisdictional problems! A plaintiff may assert any claim against a third-party defendant that arises under the same
transaction or occurrence. After summary judgment, the power company has dropped out, and all that’s left is the claim against
Owen. But there is testimony that Owen actually has its principal place of business in Iowa! Diversity is smershed! We have Iowa
on both sides of the “v”. What do we do? Isn’t this just a Zielinski issue? The court in that case considered it “deemed admitted” that
the defendant owned and operated the forklift in question. Why can’t we do that here? The lower courts try to stick it to Owen due to
deficiencies in their pleading and strategy. The Rules tell us that subject matter jurisdiction can be raised as an issue at any time,
including at trial. How do we balance a Rule that says this is a favored defense against the charge that Owen was trying to be
manipulative and mislead the other party until the statute of limitations had run?

What should the court do in this situation? On the one hand, the federal courts are courts of limited jurisdiction. If the court doesn’t
have subject matter jurisdiction over the case, theoretically the court has no power over the defendant. It’s all a matter of whether the
court will give substance to that rule of law or try to ease out of it. The Supreme Court views it as a diversity issue. But recall the
source of diversity jurisdiction: Article III gives the federal courts power to try cases “between citizens of different States”. It doesn’t
say anything about complete diversity. Statutory jurisdiction comes from 28 U.S.C. § 1332, which has the same language. But
decisions like Strawbridge give us the rule of complete diversity, where we interpret the statute to mean that you can’t have a party on
one side who is from the same state as the other. Justice Stewart says that this is different from the Rule 14 issue in that here we have
a non-federal claim asserted by the plaintiff that could have all been brought in state court. When you use impleader, you may not
have other options because you weren’t the master of the complaint.

All of this answer that we get from Owen v. Kroger is later codified by the supplemental jurisdiction statute: 28 U.S.C. § 1367. It’s
difficult. The general rule is that there is supplemental jurisdiction over claims and parties that are part of the same case or
controversy in a constitutional sense. This includes joinder of additional parties. That’s an efficiency rule. What makes the statute
difficult is that this is the general grant of power that is then restricted as to certain types of claims brought in certain types of ways.
Subsection (b) takes away certain types of jurisdiction. You can’t get supplemental jurisdiction when jurisdiction is based only on 28

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U.S.C. § 1332 (diversity jurisdiction) and when you’re trying to join up people (in certain ways, like Rule 14, 19, 20, and 24) who
would destroy complete diversity. So (a) says that you have supplemental jurisdiction over claims and parties, but (b) says that if you
don’t have diversity, you don’t have supplemental jurisdiction, as long as you’re within certain categories.

So the intent of Congress was to codify the result of Owen v. Kroger. How did they do? In Owen, all the claims arise from the same
case or controversy. We could have three different cases if we wanted to, but it’s more efficient to put them all together. What about
OPPD’s claim against Owen? The statute generally says that we’ll grant jurisdiction for anything that comes from the same case or
controversy, but it’s a diversity case, and you don’t have supplemental jurisdiction over claims made by plaintiffs against third parties.
But this is a claim by a defendant, so there’s no problem! What if Kroger had a federal question claim she could raise against Owen,
like a federal statute about the operation of cranes? Could she bring that claim? § 1367 says this isn’t based solely on § 1332, so it’s
good!

What if Owen sues Kroger for vandalizing the crane? The defendant can certainly plead that claim, and § 1367(b) wouldn’t get in the
way because it’s not the plaintiff’s claim. It’s a claim by a third-party defendant against a plaintiff, which doesn’t fall into any of the §
1367(b) excluded categories. Therefore, it must be okay! If that’s okay, can Kroger then bring the wrongful death claim? Is it a
compulsory counterclaim? Check out the statute. Yeazell says that Kroger is now acting as a defendant, but Fairman says that the
statute doesn’t allow this. Kroger is still a plaintiff! It looks like the wrongful death claim is still a claim made by a plaintiff against a
person made a party under Rule 14. This is one of the big problems of the statute: plaintiffs’ defensive claims barred by § 1367(b). It
doesn’t make any sense for them to be precluded, because the plaintiff was acting as if it were a defendant.

Say we have a plaintiff from Ohio with a state negligence claim against a Texan. Let’s say the plaintiff uses Rule 20(a) to join another
co-plaintiff from Texas who then turns around and asserts another state negligence claim against the Texas defendant. This can’t be
possible! This is the absolute subversion of complete diversity. The original lawsuit is okay, then you add someone later who will
mess up complete diversity. But, according to § 1367, this is allowed! This is a claim made by a party joined under the Rules against
the defendant! Weird! It’s not a claim by a plaintiff against a person made a party under Rule 20. It’s a claim by a plaintiff against a
defendant! Had the drafters of the statute thought about it, they would have included this situation. This is the so-called “gaping
hole”! No court has ever allowed this to go forward. It has always been rejected on the ground that it’s so gross a violation of the
concept of complete diversity that no matter how clear the statute seems on its face, decisions like Strawbridge don’t allow it. There
are concerns about this, though.

Compulsory joinder – Rule 19

This has also been described as joinder of “necessary and indispensable parties”. Rule 20, permissive joinder, allows you to bring in
essentially everybody. Rule 19 is talking about when people have to be brought in, and if they can’t be brought in, what the court
should do. Rule 19(a) determines whether they’re a party that is necessary for complete adjudication. If complete relief can’t be
given to the people who are already parties without another person, or the person could be subjected to multiple or inconsistent
obligations in their absence, then they had better be brought in. If their relationship to the lawsuit is so important that the people in the
lawsuit can’t get relief or they would be hurt if they’re not brought in, then they’re necessary parties.

In Rule 19(b), the court has to decide whether the action should proceed or be dismissed. Do we have to dismiss the lawsuit when we
lack a person? There are certain factors the court considers: (1) the extent to which a judgment will be prejudicial to parties already
involved in the lawsuit, (2) whether the judgment will be adequate without that person’s interest being represented, and (3) whether
the person will still have a good remedy if you dismiss them for non-joinder.

Temple v. Synthes Corp. – This case is trying to tell us that the Rule has two parts in a sequence. If you don’t fit in part (a), you never
get to part (b). The plaintiff has spine surgery. There is a plate and screw device implanted that broke. The guy with the hurt back is
a Mississippi resident and the hospital is in Louisiana. Synthes is a Pennsylvania company. Who do we sue? The plaintiff sues the
manufacturer in federal court, and sues the doctor and hospital in state court. The plaintiff chose to have two different lawsuits going
on about the same subject matter in different forums!

There’s no problem with personal jurisdiction for filing both suits in state court in Louisiana. There’s a Rule 12(b)(7) motion to
dismiss! This tells you something about Rule 19. It’s a joinder of parties rule, but it’s used by defendants to get lawsuits dismissed.
The defendant says that the lawsuit must be dismissed because there aren’t enough defendants to sue! The motion to dismiss is based
on non-joinder of the hospital and doctor, who arguably must be joined. Could Temple have brought everyone into one lawsuit?
Sure! It’s the same transaction or occurrence. There’s personal jurisdiction in Louisiana because the state and federal court cases are
filed there. Subject matter jurisdiction would be diversity: Mississippi versus Pennsylvania and Louisiana. This lawsuit could go
forward.

But if Synthes wanted the doctor and hospital in the suit so bad, why didn’t they just implead them under Rule 14(a)? Because
impleader must be based on derivative liability. If there was a contract between Synthes and the doctor and hospital, then there might
be a chance to implead them, but there’s no basis for derivative liability on the facts that we know them. So why does Synthes want
them involved in the lawsuit? If the plaintiff loses the federal suit, he doesn’t necessarily lose the state suit. We have to think about
strategy here. What’s the risk that the defendants are facing when they’re separated? They could both get hit because it’s two

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different causes of action! Typically, as a plaintiff, you would want both defendants in the same lawsuit because they’ll make your
case for you. Factually, it turns out that Synthes had such a close relationship with the doctor and hospital that they thought it was
unlikely they would point the finger at each other.

How does the Supreme Court deal with this issue? Are the hospital and doctor, as the manufacturer claims, parties that have to be
joined? It’s not even a close case! The district court went immediately to Rule 19(b) to look at the prejudice factors, but they failed to
make a determination under Rule 19(a) that they were necessary to begin with. By avoiding the threshold question, they circumvented
the Rule, according to the Supreme Court. You need to find a “home” for yourself in Rule 19(a) before you get to the balancing test in
Rule 19(b). The Fifth Circuit was so careful in its analysis that it didn’t even read the notes to the Rule! Joint tortfeasors are not
necessary and indispensable parties! There aren’t that many parties that are truly indispensable.

Let’s say for example, a husband and wife own land a buyer wants to buy it. He enters into a contract with the husband only. There is
a breach, and the buyer wants specific performance. Is the wife going to be a Rule 19 party? Is the wife a necessary and
indispensable person? There’s no way on these facts that the buyer can get specific performance of the land contract if it’s jointly
owned by the husband and wife. Without the wife being there, the court can’t adjudicate the wife’s half-interest in the land. This is
something brought up by the defendant trying to get out of the lawsuit rather than the plaintiff trying to join other parties. Other
examples would include people with joint interests in property, joint obligors/obligees, represented parties and limited pools/multiple
claimant.

We left off with Rule 19 and “necessary and indispensable parties”. Rule 19(a) says they must be someone you can’t go without. If
they meet this category and can be joined, they are joined, as long as there is no jurisdiction problem. But the problem is what
happens if they destroy jurisdiction. In the first case, the court skipped over the (a) inquiry altogether and went to the (b) inquiry.
That’s wrong, and we learn this from the Court of Appeals, which tells us that joint tortfeasors are never indispensable parties. But we
know that a husband and wife would be indispensable parties for this purpose.

Another example would be when there is a dad who set up a trust for himself and his kids, and the dad wants to sue the trustee for trust
abuse. Are the kids Rule 19 parties? What if the kids are already adults? Can complete relief be given in the kids’ absence? Sure.
Will there be multiple or inconsistent obligations without the kids? No. What about impeding the kids’ interests? It may depend on
how we classify the various interests. The kids are Rule 19 parties, because the dad could ask for some kind of relief that would affect
the income stream at the expense of the remainder of the corpus of the trust, which would in turn affect the kids’ remainder.

We ended up with Helzberg’s. There was no question that its interests would be impeded if Lord’s was in the case. They sue the
mall, not the other jewelry store. There is no question that the other jewelry store is a necessary party, but, in equity, should the action
proceed or be dismissed? You could also transfer to another venue that would be more appropriate. The court could allow the lawsuit
to go forward if it could cobble together ways to limit the prejudice against the parties. In this case, the court decided that the mall got
itself into its own mess, and it can sort it out itself. The conclusion is that Lord’s is a Rule 19 party that can’t be joined, however, the
lawsuit is allowed to go forward.

Discovery – Rules 26-37

Discovery is the method by which a party to a lawsuit, or other potential parties, obtain information and preserve it for trial. There are
lots and lots of rules with lots of detail. The discovery process is one of the most important innovations of the Federal Rules.
Discovery includes rules related to disclosures, requests for production, depositions, interrogatories, requests for admissions, and
requests for mental or physical exams. Rule 37 is the sanction motion, used to get people to comply with the rules of discovery.

In 2000, we had our last series of changes to the Rules related to discovery. They used to relate the scope of discovery to the “subject
matter” of the action, but that was seen as too broad. The Rules were changed to indicate that the scope of discovery should be
defined to claims and defenses as served in the pleadings. The intent is to limit discovery. Some said that these amendments wouldn’t
lead to much change, and experience has shown that they were basically right.

Davis v. Precoat Metals – This case takes place in the Northern District of Illinois, and a magistrate judge is writing the opinion.
These judges handle a lot of discovery matters. In this case, African-American and Latino workers sue this company for Title VII
violations. They complain that they were discriminated against and that they experienced a hostile work environment. What
information do the plaintiffs want? They are trying to get information about other employees’ complaints. This case comes up before
the court on a motion to compel under Rule 37. Under Rule 26(b), parties may obtain discovery under any matter not privileged that
is relevant to the claim or defense. Are other people’s complaints relevant to these plaintiffs’ claims? The key is that to have a hostile
work environment, it must be widespread. So if there are other complaints, it tends to show that there is widespread hostility. This is
what the Rule was designed to bring in as discoverable! What would have happened under the old “subject matter” Rule? It would
have been the same, and it’s hard to see what the big change is in practice. In the end, the complaints are deemed properly
discoverable.

Steffan v. Cheney – Steffan was “constructively discharged” from the Navy for proclaiming himself gay. What’s the discovery
problem? The Navy was deposing him and wanted to know if he had engaged in homosexual conduct while he was a midshipman.

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Steffan refused to answer on Fifth Amendment grounds (which you can do in a civil matter as well as a criminal matter). What does
the Navy do? They file a motion to compel Steffan to answer. They also file a request for sanctions (including simply dismissing the
case). Steffan argues that the questions that he’s being asked are not relevant. The district court judge doesn’t buy it. Steffan refuses
to answer, and the case is dismissed. Then he appeals to the D.C. Circuit. The only reason there is a right to appeal on this discovery
issue is that he’s been poured out of court entirely. He appeals his dismissal on the grounds that the discovery ruling and sanction
were wrong. Compare this to the previous case: there was no appeal of the discovery ruling until the entire case is finished, at which
point the standard for review is whether the discovery ruling caused you to lose the case. So most action on discovery is at the district
court level.

The Court of Appeals says that the question is not relevant. The original administrative proceeding was based only on his statements
and not his conduct. The Rule here says that discovery is relevant if it relates to claims or defenses. Steffan claimed that he was
discharged because he said he was gay, not because of any conduct. Does that make sense? Are they splitting hairs here? They take
a very narrow view of the “claims or defenses” standard. Evidence as to discovery is a case-specific issue, and that’s why there is so
much litigation over discovery disputes: there is so much to work with. Is this good policy? It drives up the cost of litigation because
discovery is, by far, the most expensive part of the lawsuit. It can give one side a strategic advantage in the lawsuit.

A hypothetical

We have Albert and Barbara. Albert sues Barbara for negligence. Albert wants to discover how much money Barbara has. Can he do
that? No, because it’s not relevant to whether she was negligent. The claim is for negligence, and the amount of money that the
person you’ve sued has to pay you if you win is not one of the elements of negligence and is thus not discoverable. You do want to
find out how much money people have. What if your claim is for an intentional tort? Because punitive damages are part of the law
that goes along with the intentional tort and part of the recovery that you request, courts will find that how much money the other
person has is relevant as to punitive damages. This is why when you sue a company for an intentional tort you get to find out how
much the company is worth: you craft a punitive damages award that will hurt them.

What if the defendant is insured and you have a simple negligence action? If I can’t find out how much money you have in the bank,
why can I get your insurance coverage information? There’s actually a Rule, 26(a)(1)(D), that says you are required to disclose
whether you’re carrying insurance. It’s not because it’s relevant to the claim or defense, but rather it’s so integral to this lawsuit that
we force you to disgorge the information as soon as the lawsuit is filed.

We left off talking about Rule 26. Basically, anything that’s not privileged and is related to claims or defenses is discoverable.

Privilege

Say Albert sues Barbara for an intentional tort. Let’s say Barbara gets asked in a deposition whether Barbara intentionally hit Albert.
Is it relevant? Of course. Is this information privileged? Is there a privilege that might be raised? Sure, she could plead the Fifth
Amendment. But this is a civil suit. She’s not being tried of anything. Why can she use that privilege? Even though this is a civil
case, what is said in the civil case is a statement that can be used in other actions, civil or criminal, against Barbara. This is precisely
where you want to raise the Fifth Amendment to avoid offering up free incriminating evidence to the state.

Let’s say Albert is claiming damages for emotional distress. Let’s say Barbara’s counsel wants to question Albert’s doctor about his
emotional state. It’s relevant. Though usually there is a confidential relationship between doctor and patient, this will probably be an
exception to that privilege. Albert put his own health at issue: he can’t hide behind the privilege and not have to answer questions.

Disclosures

Rule 26(a) deals with disclosures. You must disclose the contact information of people who might have useful information. You
must disclose any key documents you’re using to support your claim or defense, such as the contract in a contract dispute or a codicil
in a will dispute. You must show a calculation of your damages. You also have to provide copies of any insurance agreements, even
though such agreements aren’t typically admissible as evidence. All of this stuff must be coughed up within 14 days of the Rule 26(f)
conference. Date counting is very important! Prior to the 2000 revisions, the disclosure Rule was optional, and virtually every
District Court opted out of enforcing this Rule. Now it’s mandatory and it actually plays a role in answers questions of what is and is
not properly disclosable at the start of a lawsuit.

Let’s say that Albert has medical records that will support his injuries and damages. He has wage statements which are used to
support claims of lost wages. He has information that he was about to be fired from his job. He has a poor driving record. He
probably has to fork over both the medical records and the wage statements. The witness must be mentioned if he will be used. How
about Barbara? She has an insurance policy. She has a mechanic and a boss. She had a fight with her boss on the way to work.
There is also another eyewitness who will claim that Albert is at fault. But that eyewitness has substance abuse issues. Who and what
do we disclose? Barbara must disclose her insurance policy. The mechanic might be a good witness to claim that the car was in good
working order. We don’t want to disclose the boss. But what about the drunk witness? We’re not sure whether we want to use that

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witness or not. If you’re going to use the witness, you must disclose the witness. Are the things that we don’t disclose not
discoverable? They may be discoverable even if it’s not necessary to disclose them.

Say your client is a used-car salesman. The customer thinks she’s made a deal, but the salesman doesn’t agree. The customer sues for
breach of contract. What disclosures would we have to make? We wouldn’t have to disclose anything, but maybe we would say that
the salesman himself is a person with knowledge of claims and defenses. You could also list yourself as a person with knowledge of
the claims and defenses. So disclosures are mandatory, but they may not create any burden in a particular case. On the other hand,
what does the plaintiff have to disclose? The plaintiff would have to disclose some kind of damage computation.

The intersection between Rules 37 and 26

These are both tools that may be used in certain contexts depending on whether the facts of the situation make each Rule applicable.
Rule 26(g) is kind of like a mini version of Rule 11. There are sanctions imposed for an attorney having signed discovery requests
that are “bad” for whatever reason (e.g. timeliness). But note that Rule 11 doesn’t apply to discovery. The typical sanction under
Rule 26(g) will be the fees associated with having to respond to the request. What if we wait until after the discovery conference, and
then you think it’s still too soon? You can use Rule 26(c) to get a protective order to try to prevent the use of the deposition because
you think it’s premature. You use Rule 37 when the other side fails to disclose something and they try to introduce it at trial. Rule 37
says that if they failed to disclose, then they don’t get to use the person or fact in the trial. There are more bad things in Rule 37(b)(2):
facts can be deemed established, evidence can be banned, and pleadings may be struck.

We left off discussing compliance. We could go over a lot of different problems, but the important stuff is that you need to look at
both Rule 37 and Rule 26(c) and (g). Is it better strategically to seek protective orders to prevent having to answer discovery, or is it
better to object and wait for the other side to file motions to compel and then raise the same issues you would raise in a protective
order? Yeazell says that it’s better not to rush for the protective order. You might be able to defuse a discovery dispute that will be
enflamed by filing a protective order motion. (But to whose advantage is such strategy? The client? The attorney? “Justice?”)

Hickman v. Taylor – This is a much more broadly focused case and it establishes some larger issues. There were some tug boat guys
who got killed. Norman Hickman is one of the guys killed. There’s this attorney, Fortenbaugh, who is employed by the tug boat
company. This lawyer interviews witnesses to prepare for trial. He talks to the survivors and other witnesses. He made notes about
what they said. There is an interrogatory from Hickman to provide the notes from these interviews. The attorney declines, claiming
that the memos are privileged. But he ends up going to jail for contempt!

Are these documents really privileged? We’re told that these memos fall outside of attorney-client privilege. If it’s not privileged, is
it relevant? Yes. These are the statements of people who would know best what happened. If it’s not privileged and it’s relevant, you
usually get it. But at the end of the day, they don’t get this. Why not? The Court says that it’s not protected from discovery. But
what makes this material special and allows it to be treated specially? It’s attorney work product. The information would otherwise
be discoverable.

There are two types of information: first, witness statements in some form. Why aren’t these discoverable? As to these witnesses, the
Court tells us that there may be some way to get this information, but not on these facts. There was no effort on the part of the
requestors to get this information themselves. They could have just gone out and done these interviews themselves. They must show
some reason why the other attorney’s work should be available to them. What about the mental impressions of the lawyer as a result
of the other witness investigation? The Court says there is no legitimate purpose served by having this information discoverable.

Rule 26(b)(3) talks about trial preparation and what may or may not be discoverable. A party may obtain discovery of documents and
tangible things otherwise discoverable prepared in the preparation of litigation only upon a showing of substantial need. If the
material is otherwise discoverable and doesn’t relate to experts, and was prepared in anticipation of litigation, then you can’t get
discovery of that information unless the discoverer can show some substantial need and there is no reasonably available substitute.
Even then, the court will protect the lawyer’s mental impressions in constructing an order of discovery. Who does this Rule apply to?
It applies not just to the party’s attorney, but also the party’s consultant or other representative. If you find great eyewitnesses, you
must give up the name of who you found, but you don’t have to give up exactly what they said. Just because you spent a lot of money
finding a witness, you still have to cough up their name.

If someone isn’t a party to a lawsuit, they can obtain a statement that they made previously. A party might not be able to get this
statement, but a non-party can get it for you.

Upjohn Co. v. United States – Who is the client in the corporate context? The “Control Group Test” protects communications by
decision-makers or those who influence them. Rehnquist says we want to encourage frank communication between attorneys and
clients. We don’t want to just protect the top of the hierarchy. The Court doesn’t establish a set rule, but it did stop the use of the
“Control Test”. An alternative test is the “Subject Matter Test”, which provides any employee with privilege as long as the matter is
within the employee’s performance of their duties.

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Discovery disputes

We can get protective orders that can prevent you from having to disclose information. There are Rule 26(g) sanctions, big sanctions,
motions to compel, and of course the right to appeal. But when will the right to appeal kick in? It will frequently be way too late. At
the core of discovery is the fear of abuse. There are three typical discovery abuse problems.

There may be too little discovery (or the “stonewall position”). You’ll encounter a person who doesn’t want to disclose information
even if it is explicit required. People don’t want to disclose stuff that would be bad for your client, but you have no choice under the
Rules. If a proper request is made for relevant, non-privileged stuff, you must cough it up. A mandatory discovery conference may be
required under Rule 26(f). Initial disclosures under Rule 26(a) are designed to solve the problem of too little discovery. There are
certain categories of information you must give up, period.

Next, there is the problem of too much discovery. Sometimes millions of pieces of paper are disclosed. But that may or may not be
responsive. There can be an ethical question here. There are ways to control this: under the general Rule 26(b), you can limit the
scope of a discovery request. There are also limitations in Rules 30 and 33 on depositions and interrogatories. There are compliance
Rules in 26(g), and you can also get a protective order under Rule 26(c) to prevent having to respond. By Rule 26(g), every document
you sign is signed in a “Rule 11” fashion. You certify that what you’ve done is complete and in good faith. You can also get motions
to compel under Rule 37. It also provides other specific “tiers” of sanctions under Rule 37(b)(2). These become the “big sanctions”.
Facts can be deemed established: even things that aren’t true! Evidence can be banned. Pleadings can be stricken. You can be held in
contempt. Finally, there may be attorney fees and expenses awarded regarding the discovery at issue.

The exam will be based on pending real cases. But there probably won’t be a pending case that deals solely with a discovery issue.
Fairman has also used short-answer, problem-type questions to test discovery. There should be old exams on file now.

Resolution without trial

There are fewer and fewer actual trials, even though there are many, many more cases! The data that Fairman is showing us is just for
federal trials. Most cases are state cases, though. And when we look at what happens in the states, the data is about the same. Lots of
cases settle, around 70% of them. Rule 12 motions dispose of a certain number of cases. Default judgments can cause the end of
suits. Summary judgment, dismissals, and ADR are other options.

Summary judgment – Rule 56

Don’t mix up the “burden of production” and the “burden of persuasion”. The burden of production is the obligation to go forward by
producing some evidence on an issue. That may be the same as who has the ultimate burden of proof, or rather, the burden of
persuasion, which is the obligation to convince the trier of fact to some level of certainty of the truth of an issue. Judges can intervene
to prevent something from going forward in a lawsuit if plaintiffs cannot meet a minimal showing with the production burden. But if
you can make a minimal showing, you’ll clear Rule 56 and have the chance to get before a jury. If the plaintiff can make a showing,
the burden shifts to the defendant to make some showing that there is an issue of fact for the jury to decide. Otherwise, if there’s
nothing the defendant can say, the plaintiff will be entitled to judgment as a matter of law.

Adickes v. S.H. Kress & Co. – At trial, the plaintiff had the burden of production and persuasion. On summary judgment, the
defendant’s burden was to show that the plaintiff could not prevail at trial. The defendant, in essence, had the burden of production
and burden of persuasion. The defendant had to prove that the plaintiff couldn’t win. This case more or less moots summary
judgment in federal court practice from the defendant’s standpoint. The burdens to prove that the plaintiff can’t win would be so
heavy that you might as well try the case.

Celotex Corp. v. Catrett – Here’s a wrongful death claim. When you look at the pleadings, the complaint alleged that the defendant
manufactured asbestos, that the asbestos was unreasonably dangerous, that Catrett was exposed to the defendant’s asbestos, and that it
caused his death and damages. The defendant responds by admitting they produced asbestos, but denying basically everything else.
Celotex moves for summary judgment on the issue of exposure. They claim that this plaintiff has proved that he was exposed to their
particular type of asbestos. The district court grants summary judgment to the defendant. The court says that there was no evidence
that the plaintiff was exposed to Celotex-brand asbestos. The case will be dismissed. That’s because there’s no information that the
plaintiff came forward with that can show exposure to Celotex asbestos. That’s a burden they would have at trial as to causation,
saying basically “if you can’t do it now, what makes you think you’ll be able to do it at trial?”

The case goes up to the D.C. Circuit, which reverses, saying that the burden of the moving party (Celotex) required it to support its
motion with affidavits to negate exposure, that is, to prove that he wasn’t exposed to Celotex asbestos. The case goes up to the
Supreme Court on that issue. They don’t explicitly overrule Adickes. Rehnquist says that after a period of discovery, you can get
summary judgment against a party if they fail to establish an element that was central to their case and on which they would have the
burden of persuasion at trial. If after discovery, you can’t come up with any evidence of something you have to prove at trial, then
there’s no reason to try the case. Rehnquist suggests that this Rule operates much like Rule 50 (judgment as a matter of law). When

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Celotex files its motion for summary judgment, it has to say that the plaintiff failed to produce evidence as to the exposure. As to that
motion, Celotex has the burden of production. When they do that, the burden of production then shifts back to the plaintiff. They get
their last chance. Now’s the time they must come up with any evidence.

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