Civil Procedure Outline one 1st. Semester

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●Civil Procedure Outline One● Fall 2003

Ch. 2 – Pre/Post-Judgment Relief

- The Judge’s Role  Judge is intended not to be too involved with either party – should be impartial

o Rule 16 – Pretrial Conferences  The judge may order pretrial conferences to: • Expedite the disposition of the action • Establish early controls • Discourage wasteful pretrial activities • Improve the quality of the trial • Facilitate settlement of the case o While public policy encourages settlement, the judge may not force the parties to settle (Kithe p. ).

o Rule 16(b) – mandatory scheduling orders, limiting time to:  Join other parties and amend pleadings  File motions  Complete discovery  Modify: • Disclosure times created in 26(f) conference • The extent of discovery permitted  Include dates for pretrial conferences and trial dates (optional)  Include any other appropriate matters under the circumstances  Order should be made ASAP after rule 26(f) conference, no more than: • 120 days after the complaint has been served • 90 days after the D has made an appearances

o Rule 16(f) – Sanctions – a judge may invoke sanctions if:  Party of attorney fails to obey scheduling or pretrial order  Either party is unprepared  Lack of good faith  If there is no appearance made at all

- Prejudgment Relief

o Prejudgment Seizure (Attachment)

• First must determine if there is an exigent circumstance that gives authority to attach the property before the end of the trial • Consider Due Process (14th amendment) does the state statute give the D a right to be heard first? • Consider Defendant’s interest o Presence of a bond o Is there a prompt post attachment hearing? • Risk of Error o Did the judge issue the writ? o P’s showing: does the P have to submit an affidavit supporting their request for attachment? o Issue Presented: is the issue subject to documentary proof? • Plaintiff’s Interest o Exigent circumstances (the need for prompt action) o A pre-existing interest in the property • Must balance the harms to determine the outcome o Preliminary Injunction – an action or lack of action is causing substantial damage  To determine if a preliminary injunction should be issued, you need to balance the following: • Probability of P’s success at trial • Irreparable harm o Imminence Issue - Must be immanent (the damages must occur before the trial) o Money damages would not be sufficient • Balance the hardships o Look at the harm the P will sustain if the injunction is not granted verses the harm to the D if the injunction is granted • Public interest – the effect of the injunction on the public as a whole • In federal court, the P must post a bond • Also consider problems with the implementation of the injunction

- Post-judgment Relief (Final Relief)

o Compensatory (Money) Damages – designed to restore the victorious P to as good a position as he was in before the harm occurred – a return to the status quo ante

 Prerequisites (under substantive law) • Causation – was the injury caused by D? • Liability • In Piphus, P may recover, but only if the suspension was unjustified – would he still have missed the days of school if there was a hearing? If so, then the injury was not caused by D’s actions

 Elements of Damages – Examples • Medical injury • Pain and suffering • Lost future earnings/lost wages • Property damage • Out of pocket • Property damages

 Proof • Need to show evidence of harm (elements) and causation (prerequisites) – must prove actual injury • Example: if Piphus’ suspension is unjustified, P still needs to prove he was injured by this deprivation. Just because he was wronged does not mean that he can be compensated. P must first prove the actual injury (fn 4(a)p. 57) • Possibility of being compensated not for missing school, but for the deprivation of a constitutional right – court finds that Piphus was denied due process, but states that this “procedural injury” is not deserving of compensatory damages. The court awards only nominal damages.

 Measure of Damages • Need to monetize the harm (Wall v. Platt) • Replacement value v. Market value o Should Wall get all new clothes, or replacements from a thrift shop? o What is the value of a day in Chicago public schools?

 Instructions to the Jury • How far may a lawyer go with his argument to the jury? What types of arguments are permitted? Rules may prohibit certain types of jury arguments o “a day in the life” argument – how much would you (jurist) pay to spend a day like P? (X’s 5000 days)

 Post-Judgment Motions • Remittitur allows a judge to alter amount of verdict/settlement or call for a new trial.

- Punitive Damages – Punishment

o General Deterrent Effect  Punishment will hopefully prevent similar future action

o Specific Effect  How will sanctions affect this particular losing D?  Will they have the desired effect?  Punitive damage awards will likely be greater against a wealthier D because smaller amounts may not have the desired deterrent effect.  Punitive damages also reflect to some degree the heinousness of the D’s acts

- Nominal Damages – for violations of rights, a symbolic award o Piphus was denied due process but court found no harm inflicted and awards nominal damages. Although it is a symbolic award, being awarded nominal damages does have some value:  Victorious P’s often collect attorney’s fees and costs if the particular cause of action sued upon so provides. Piphus may recover attorney’s fees.

o Note on Enforcing Money Judgments: a judgment is not an order for D to pay, it is a declaration of his rights and liabilities. A court may not hold a judgment debtor (loosing D) in contempt for failure to pay, but a judgment creditor (winning P) may use the court’s authority as a “hunting license.” The court will assist in garnishments, placing liens on property, and giving P the tools of discovery in locating “hidden Assets.”

- Injunctive Relief

o Requirements:  Success on the merits • Did P win the suit? • Does the success relate to the injunction requested?  Inadequate remedy at law • Will money damages fully compensate P, or are they inadequate?  Is there a risk of imminent irreparable harm?  Balancing of hardships • Initially favors P • Does this balance weigh against the issuance of an injunction? • Does the balance of hardship favor the D – permanent injunction? • What is it that the D is going to suffer?  Public Interest • Does the injunction serve this interest?  Practicability • Can the court, as a practical matter, administer the injunction?

o Enforcing Court Injunctions  Contempt – three types:

• Criminal – violation of a court order can be prosecuted as a crime. Penalty imposed is not designed to compensate P or prompt compliance, it is a criminal case and thus requires proof beyond a reasonable doubt. P is therefore removed from the process

• Compensatory Civil – Court may direct D to pay P an amount the will compensate for the harm caused by violation of decree. Defeats the purpose of injunction, because in practice, it offers money damages where they are supposedly inadequate.

• Coercive Civil – Judge to prompt future compliance

Rule 65(d) states that injunction applies to all employees and officers of an employer.

 Collateral Bar Rule: • Those D’s who violate court orders are barred from defending themselves on the ground that the injunction was unconstitutional or otherwise invalid. • Rule: D’s are barred from challenging a judicial order in the collateral contempt proceeding. • An injunction must be obeyed until it is reversed. You cannot challenge the validity of an injunction by disobeying it.

- Cost of Litigation

o Traditional Costs – Rule 54(d) – prevailing party recovers costs  Includes: docket and clerk fees, court recorder’s fees, printing and witness fees (as defined in 28 U.S.C. § 1920)  American Rule – holds that attorney’s fees are not awardable as “costs” to the prevailing party in the litigation.

o Attorney’s Fees – Exceptions to the American Rule  Fee shifting Statutes Rule 54(d)(2) – remove the burden of fees in protracted litigation. Encourages suits that would otherwise not be filed (esp. civil rights suits, ex. Piphus)  Common Law Exception – D’s may recover attorney’s fees when P has acted in bad faith in bringing the suit. The rule was enacted by the court in Aleyeska Pipeline note 4 p. 94. The court later refined this exception for Title VII actions in Christiansburg … – stating that D may recover attorney’s fees when P’s suit is frivolous, unreasonable, or without foundation (note 5, p. 94). The courts have interpreted 42 U.S.C. § 1988 in the same way as Title VII.  - This raises the question of whether P should only recover fees when D asserts a groundless claim.  Reasonableness of Attorney’s Fees - § 1988 and most, if not all, other fee shifting statutes permit only an award of “reasonable” attorney’s fees. What is reasonable? • Fees are usually computed by taking the hours reasonable expended and multiplying that figure by a reasonable hourly rate. This resulting figure is called the lodestar. There are some situations where this figure may be adjusted up or down (note 15, p. 23)

Ch. 3 – Pleadings

- Evaluating the Claim o Purposes of the Pleadings – should be addressed to the objectives of the pleading rules

 Notice to the Defendant – inform the defendant what the charge is, and to allow defendant preparation. To avoid potential preparation prejudice claims.

 Notice to the Court – identify the issues and define the scope of the case for discovery purposes. Helps determine what will be relevant to the case

 Decide the Merits of the Case – enables courts to throw out groundless suits. A motion to dismiss for failure to state a claim under rule 12(b)(6) helps with this.

o Motions to Further Pleasing Objectives  8(a) – Complaint in a short & plain statement that must have: • grounds upon which jurisdiction depends • claim showing pleader is entitled to relief • demand for judgment for the relief

 8(b) – forms of denials • specific denial – paragraph by paragraph defense o direct denial o no knowledge to form belief • general denial – deny all allegations at once – subject to Rule 11

 8(c) – Affirmative defenses • shall be set forth in pleadings • an appeal based on an affirmative defense, which was not raised in responsive pleadings or at trial will be denied o this guards against post-trial surprise

 8(d) – Failure to deny = admission • certain facts are presumed to be in the knowledge of a responding party, particularly those of public record

 8(e)(2) – Alternative pleading • an insufficient pleading does not make all pleadings insufficient • alternative and inconsistent allegations are permitted – codified in some states – subject to Rule 11

 12(a) – Defenses when presented: • 20 days after service of summons • 60 days if the P is the US government • exceptions with Rule 12 motions: o motions denied – 10 days from court action o 12(e) motion – 10 days after service

 12(b) – defenses to the complaint.

 12(b)(6) – Motion to dismiss for failure to state a claim. If granted, D files no answer to the initial complaint – if granted, all allegations are true, no claim – if denied, 10 days to plead a responsive answer

 12(c) – Motion for judgment on the pleadings alone (post-answer, no discovery) • examples: D’s answer admits to the claim, P fails to state a claim, or D raises an affirmative defense

 12(e) – Motion for a more definite statement – advantageous to D because it clarifies the claim and better allows D to file a responsive pleading. Helps flush out P’s case. • some judicial interpretation as to whether more detail falls under discovery

 12(f) – Motion to strike – parties can move to strike insufficiencies, redundancies, obscene language, scandalous material, irrelevant material, ect. In opposing pleadings. Important to P, P won’t strike because no reason to

 12(g) – Consolidating Defense – all motions must be submitted at the same time. Can have many motions and contradictory motions, but must be filed all at once. Any 12(b) defense motions omitted will be waved, unless allowed by 12(h)(2): • 12(b)(6) – failure to state a claim • 12(b)(7) – failure to join a party • failure to state a legal defense • 12(b)(1) – subject matter jurisdiction

 12(h) – Waver or Preservation of Defenses

 9(b) – Pleading Special Matters – Fraud, Mistake. These accusations must be stated with heightened particularity because they are easy to allege and damaging in nature. (Ross) Accusations of malice, intent, knowledge, and conditions of mind may be alleged generally. • Summary judgment will not be granted in a case of fraud unless there is an answer filesd

 Rule 10 – Form of the Pleadings:

• 10(a) – Captions, names of the parties – every pleading requires a caption with ….. • 10(b) – separate statements: o all allegations (claims/defenses) must be made in numbered paragraphs o each paragraph shall be limited to a single set of circumstances (or whenever needed for clarity) o in later paragraphs or pleadings, paragraphs may be referred to by paragraph number • 10(c) – Adoption by reference o An exhibit is a part of a pleading for all purposes – Anything attached by P is part of the complaint and the judge can look at it

o Standards for Granting Motions

 12(b)(6) – Motion to dismiss for failure to state a claim • Look to Substantive law: Do the alleged facts constitute a legally valid claim? – valid claims can’t be dismissed due to invalid claims 8(e)(2) • Address only the sufficiency of the claim as presented, not the truth or the validity o But, one may challenge truth or validity of facts by making 12(b)(6) simultaneously with a 12(e). This allows introduction of affidavits and other evidentiary materials. Otherwise you are limited to the face of the complaint (“four corners of the document”). • Admits the well pleaded allegations, but allegations give rise to no claim in substantive law. What does this mean? It means that in evaluating the complaint, the court doesn’t concern itself with believability. The court simply takes the pleaded facts and asks, “even if these facts are all true, is P entitled to relief under any theory of recovery?” • Claims alleging fraud require heightened specificity under rule 9(b). (Ross)

 12(e) - Motion for a More Definite Statement • Is the pleading too vague or ambiguous so that a party cannot reasonably be required to frame a responsive pleading? • Bear in mind rule 10(b) – requires all averments in claim to be made in numbered paragraphs. • Courts will not allow the motion if made only to “flush out” the claim of the opposing party. That’s for Discovery. (US v. Board of Harbor Commissioners) • If granted – 10 days to comply

 12(f) – Motion to Strike • Does the pleading contain an insufficient defense, or any redundant, immaterial, impertinent or scandalous matter?

 8(e)(2) – Alternative pleading • can make allegations that may seem mutually exclusive in order to cover all options and possibilities in the trial – contradictory complaints – let the jury decide which one is best

- Honesty in Pleading - Rule 11

o Papers filed in Court

 Rule 11(a) - Currently limited only to filings in court and those who sign them. Includes: pleadings, motions, “and other papers” including discovery materials. Papers which are not signed will be stricken if not promptly corrected.

 Rule 11(b) - Presence of a signature implies to the court that, to the best of the signer’s knowledge, it is a reasonable inquiry made with: • proper purpose – no harass or cause unnecessary cost and delay • warranted by existing law – or a non-frivolous argument to change existing law – enough research was completed (objective standard – not asking about pure heart, but if a competent lawyer would conclude the same about the written law) • well grounded in fact – likely to be reasonably supported by facts • based on evidence – Denials of factual contentions are based on evidence or reasonably based on lack of belief/information – there is a lot of room for interpretation – attorney represents the truth by signing the submissions

 Proposed Amendment extends scope of Rule 11 not only to papers filed and their signators, but to those persons who later advocate a position based on those papers. May include not only attorney who signed, but those parties who later argue motions, ect.

o Duty of Parties – Requirements for Assertions

 Must be well grounded in fact • Requirement to conduct a reasonable pre-filing investigation of the facts of the case (or) there must exist a high probability that evidence will turn up through discovery. (Asks: what was reasonable to believe at the time the papers were filed.) • Proposed Amendment requires that allegations have evidentiary support, and are likely to have such support after reasonable investigation.

 Must be warranted by existing law or a good faith argument for the extension, modification, or reversal or existing law. • This raises the question of whether one must inform the court that the argument being made is for the extension, modification or reversal of existing law. The 7th Circuit has said yes, that parties must inform the court of such an argument. But the 9th Circuit has declined to impose such a requirement (golden eagle)

 Must not be interposed for any improper purpose, such as to harass not to cause unnecessary delay or needless increases in the cost of litigation.

o Objective Standard

 The standard for evaluating papers in the court is one of reasonableness. It seeks to determine not what the particular attorney or signator believed, but what could reasonably be believed after a reasonable pre-filing investigation of the facts. (Old standard was subjective – “good faith” inquiry. This gives “teeth” to Rule 11)

o Sanctions – Rule 11(c) –  Rule 11 used to state that courts shall impose an appropriate sanction. The sanction may be of a deterrent nature or designed to compensate the opposing party. Sanction may be leveled against either the attorney, the party or both.

 Rule 11(c)(1)(a) – Safe Harbor Provision - Must make rule 11 motion for sanctions separately from all other motions • Motion for sanction may only be filed if the pleading is not corrected within 21 days of service – to give opposing party an opportunity to correct the pleading, abandon or to remove the offending feature of the challenged position before the sanctions request is filed • Substantially curtails rule 11 except when the judge chooses to get involved • Courts have become quite aggressive in applying the safe harbor provision in general

 Rule 11(c)(1)(b) – exception where it is done on the court’s initiative - won’t require a cooling off period if the judge intends to impose sanctions – burden of proof falls on the pleader to show that it is not in violation

 Can be initiated by motion or on the court’s initiative

 Amendment to Rule 11 – Leaves discretion of whether to impose sanctions to the trial judge. “The court may impose an appropriate sanction.” This may take some teeth out of rule 11

 Limitations to Sanctions 11(c)(2) - Sanctions shall be limited to what is sufficient to deter repetition of the conduct – non-monetary damages, penalties paid to the court, payment of other party’s expenses/lawyer’s fees – judges have the freedom to impose new types of sanctions – are becoming creative • Money damages should not be awarded for: violations of 11(b)(2) – pleading not warranted by law, against a represented party; when initiated by the court 11(c)(1)(B).

 Inapplicability to Discovery – Rule 11 does not apply to: • Disclosures • Discovery Requests • Responses • Objections • Motions subject to provisions in Rules 26 - 37

- Defendant’s Response

o Default – Rule 55

 Failure to respond to a complaint with either an answer or a pre-answer motion results in a default judgment for P. (Beware of the default judgments, however, as they raise serious due process concerns.)

o Respond by Motion

 D can buy time before filing the answer • D has 10 days after denial of motions to file a responsive pleading

 Point out insufficiencies in complaint • This is not always desirable because it may help P to reassert his claim in a better way. D may wish to let the insufficiencies in P’s case remain as a “time bomb” for trial.

 Problems with responding by Motion • Rule 12(g) – “All at once” requirement: if D makes a pre-answer motion but omits one of the Rule 12 defenses then available, D cannot make any further pre-answer motions

• Rule 12(h) – Defenses:

o Rule 12(h)(1) - Least favored defenses are lost forever if not raised in a pre-answer motion (if one is made), or in the answer (if D does not make a pre-answer motion)  Lack of personal jurisdiction  Improper venue  Insufficiency of process  Insufficiency of service of process

o Rule 12(h)(2) – Favored defenses can be made in any pleading, motion for judgment on pleadings, motion for summary judgment, or at trial on the merits:  Failure to state a claim upon which relief can be granted  Failure to join an indispensable party  Failure to state a legal defense to a claim

o Rule 12(h)(3) – Most favored defenses may be made anytime, including post-judgment, when case is on appeal. Court can also raise this sua sponte on appeal.  Lack of subject matter jurisdiction

o Responsive Pleading – Answer

 Rule 8(b) – Admit and/or Deny • What is not denied is deemed to be admitted and removed as a factual question for the remainder of the case

• Because the power of admission is so great, D may deny for lack of information and belief. D does have a duty to investigate in order to determine whether to admit or deny

• A denial made because of lack if information and belief may therefore be considered an admission if D did not properly investigate. (if the court finds that D should have known do did know facts sufficient to admit or deny averments, then such denial will be considered an admission and the factual point removed from contention in the case – David v Crompton & Knowles)

 Rule 8(d) – averments are deemed admitted if not denied in responsive pleading

 Rule 8(c) – Affirmative Defenses

• If an affirmative defense is not introduced in the answer, then it is not an issue in the case and cannot be introduced later. D cannot defend the claim on the basis of an affirmative defense that has not been asserted. (D may amend his answer and add affirmative defenses. This requires that D comply with the procedural rigors of Rule 15 – see below)

- Amendments Rule 15 – Function to let party know about changes – allowed liberally, ultimate goal is trial by merits, not on technicalities

o Response to an Amendment – Rule 15(a) – time left for responses, or within 10 days – whichever is longer

o Of Right – Rule 15(a)  D has 20 days to respond and can amend his answer at any time during that period – once of right.  If non-responsive pleading 12(b) motions – non motioning party can amend after motion by right

o Before Trial Rule 15(a)  15(a) states that a party may amend by written consent of the adverse party of by leave of the court. “Leave shall be freely given when justice so requires.” This sounds great in theory, but with crowded dockets, judges can sometimes have peculiar notions of what “justice requires” at the trial level.

 Leave to amend should be denied if: • There is undue delay – how long has the party waited to amend? • There is prejudice to the opposing party – “preparation prejudice” • It is too close to trial – the closer it gets to trial, the less likely that a judge will grant leave to amend – Could have prepared differently for trial if had known about the change - David v. Crompton I • Disruption of trial – cut off for discovery has passed

o At Trial - Amendments to Conform to Evidence  “Automatic” Amendment – Rule 15(b) – when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. (if D introduces evidence at trial bearing on an affirmative defense not raised in the answer, the trial judge will treat the defense as if it had been put in the answer unless P objects on the ground that it is not within the scope of the issues raised by the pleadings.)  “Manual” Amendment – If the opposing party at trial objects to evidence on the ground that it is not within the issues raised by the pleadings, then the court may nevertheless allow amendment “when the presentation pf the merits will be subserved thereby.” (the same factors and in 15(a) – no undue delay or prejudice to the opposing party.) The court may also grant a continuance to the objecting party to prevent undue prejudice. Courts are reluctant to do this.

 Problem – Allowing amendment at trial seems to run counter to Rule 16(e)’s pretrial order provision which states that the course of action “shall be modified only to prevent manifest injustice.” It follows that courts are reluctant to grant leave after a trial has commenced – If there is a final pretrial order, changing what it says should only be allowed if there is a serious injustice

o Relation Back of Amendments – Rule 15(c) – Amendments will relate back to the date of the original pleading when (policy – to encourage trial by merits):

 Relation back is permitted by the law that provides the statute of limitations;

 The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading. Marcus says that this is a “common sense” question as to the overlap of the issues (Gold Dust Casino – neglect maintenance or construction?) - Adding/changing a claim – It must be shown that the claim arising from new issues is still derived from the original point at issue, or same transaction

 Adding Parties - The additional parties named in the amended pleading are on sufficient notice and provisions above are satisfied. Sufficient notice is a term of art which means that within the period provided by Rule 4(j) for the service of the summons and complaint (120 days within filing) the new party:

• Has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, • And, knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party – courts are making this more difficult, new D must have heard about the lawsuit and reasonably known that they could have been sued • Permitted by law providing for the statute of limitations in the case 15(c)(1)

 Supplemental Pleading Rule 15(d) – supplemental pleading allowed: • Upon motion of party & leave of court • Same original action • Event that happened after date of pleading to be supplemented

- Note: “Knew or should have known” connotes that potential D’s need not be told of an impending claim. It is enough that they knew, through some means, of the existence of a valid claim against them. (Gold Dust – where the new D “wore two hats” as president of both companies and knew or should have known about the injury claim.) ●Ch 4 – Discovery → Is there a genuine issue of material fact?

- Policy: o Very Broad commitment to insuring access to information necessary for preparing for trail – Discovery can be extremely intrusive and burdensome that it might outweigh its promise to provide info. for trial and invades privacy

- Initial Disclosure – the first thing that should happen → R 26 o Must initially disclose material that you may use to support claims and defenses – includes witnesses, documents, or the location of documents for copying  Must happen shortly after the 26(e) meeting probably formal discovery can’t be completed before deadline o R 26(A)(1) – a party must, without awaiting a discovery request, provide to other parties: • R 26(a)(1)(A) – the name of each individual likely to have discoverable information that the disclosing may use to support its claims or defenses unless solely for impeachment, identifying the subjects of information; • (B) – A copy of, or description by category and location of all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses unless solely for impeachment. • (C) – a party seeking damages shall provide by disclosure a computation of them and make available for inspection the document in which it was based • (D) – any insurance agreements for copying and inspection as under rule 34 • these disclosures must be made 14 days after the Rule 26(f) conference unless a different time is stipulated by the court or unless the party in the conference objects to initial disclosures that are not appropriate in the circumstances of the action in the rule 26(f) discovery plan.  R 26(A)(2) – Disclosure of Expert Testimony • (A) – party disclose all expert witnesses that may be used in trial • (B) – Experts must submit a signed written Report • (C) – due date – Initial at least 90 days prior to trial; Rebutting w/in 30 days of initial  R 26(A)(3) – Pretrial disclosure – in addition to disclosures required, a party must provide to other parties and promptly file the name of each witness, and appropriate documents – these must be filed w/in 30 days before trial  R 26(A)(4) – Must be made in separate paragraphs and signed

o R 26 (B) – Discovery Scope and Limitations  R 26(B)(1) – in general parties may obtain discovery regarding any matter, not privileged that is relevant to the claim of defense of any other party. For good cause, the court may order discovery of any matter relevant to the subject matter in the action. Relevant info need not be admissible at trial if the discovery appears reasonably calculated to lead to discovery of admissible evidence.  (2) – Limitations – the court may limit the number of depositions or require that a party seeking discovery pay part or all reasonable expenses incurred by the responding party, if it determines that: • (i) the discovery sought is unreasonably duplicative or cumulative or is obtainable from another source that is more convenient, less burdensome, or less expensive; • (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain all info sought; or • (iii) the burden or expense of the proposed discovery outweighs it’s likely benefit, taking into account the needs of the case, the parties resources, the importance of the issue at stake, and the importance of the proposed discovery in resolving the issue. o R 26 (f) – Conference – details in meeting – discovery plan must be submitted 10 days after the meeting o Concept of use in Litigation is Broad:  Use in litigation – submitted in support of a motion, used/presented in discovery or court  does not require the disclosure of things that are damaging to the disclosing party – does require disclosure of anything contemplating using in defense - Rule 11: allegations and denials must be supported by evidentiary material. If there is not any when it comes to disclosure time, could possibly have Rule 11 violation o The scope and application of initial disclosure requirement is subject to revision by the parties, if they agree to forget about it or to modify - okay. Be alert to any agreement to change the disclosure requirements if there is a question about them  Rule 37(c)(1) – the party that should have disclosed but failed to should not be permitted to use it unless there was a supplemental disclosure of the failure to disclose was substantially justifies or harmless – gives the disclosure obligation considerable force when someone tries to use something that wasn’t disclosed

- Devices for Discovery (DIPER): o Depositions → oral exam or written questions – R 30/31 o Interrogatories → written – R 33 o Production of Documents → or permission to enter or inspect – R 34 o Exams → physical or mental – R 35 o Requests for Admissions → R 36

o Depositions – Rule 30  R 30(A) – a party may take the testimony of any person without leave of the court  R 30(A)(2) – leave of the court required if: • the proposed deposition will result in more than 10 depositions by a party • the person to be examined had already been deposed • a party requests to take a deposition before a discovery meeting, unless witness is leaving the country and will be unavailable later • the person deposed is in prison  R 30 (B) – notice of examination • (1) – must give reasonable notice of deposition • (2) – must notify as to method of recording – the party taking the deposition will bear the expense • (3) – with prior notice any party designate another method of recording  R 30 (C) – all objections made at the time of examination shall be noted on the record, but the examination will continue  R 30(D) – specific about behavior during deposition • R 30(D)(1) – any objection to evidence shall be stated concisely and in a non-argumentative or suggestive manner – party may instruct deponent not to answer only:  To preserve a privilege  To enforce limitation on evidence by court  To present a motion to court under paragraph 3 – that at any time deposition can be ended if can be shown that examination is being conducted in bad faith, or to unreasonably annoy, embarrass, or oppress the despondent or party  R 32 – How deposition will be used in proceeding • R 32 (A) – details of the deposition may be used against any party at any time o (1) – used to contradict or impeach testimony o (3) – used if witness is dead or greater than 100 miles away  Woodshedding the witness – lawyer tries to alert the witness to the pitfalls he will confront and school witness in answering the questions

o Interrogatories – Rule 33  Problem – too susceptible to abuse – 1. questions may be too difficult to answer 2. can’t follow up, answers usually written by lawyers, who wish to disclose little and work to give you the run around  Can be useful in identifying witnesses and discovering basic information  Must respond within 30 days  R 33 (a) – Limitations – can’t serve more than 25  R 33 (b)(1) – each interrogatory shall be answered separately and fully in writing under oath, unless objected to, in which must state the reason for objection  R 33 (b)(4) – must clearly state all grounds for objection  R 33 (D) – The answering party may opt to allow a questioning party to see records to get an answer himself (shifting the burden of research) – may discover something you did not want them to

o Production of Documents – rule 34  R 34 – request to produce document or permit entry for inspection  R 34 (B) – must describe with reasonable particularity the things sought • the manner in which the inspection will be done • must request reasonable time and place for inspection • leave of court needed to serve requests early • have 30 days to produce or object unless another time is agreed upon • non-parties may be compelled to produce documents under R 45 • party producing must do so in as documents are kept in usual course of business, or shall organize • The producing party must produce all items within its possession, custody or control – difficulty in obtaining documents is not an excuse (requires a good faith effort) o Kozlowski v. Sears: burning PJ’s – fact that sears had a bad indexing system – not an excuse not to produce or to shift burden

o Exams – Mental and Physical  R 35: • must get court order by motion • must show good cause and that it is a material matter in controversy • must give notice to all parties – examiner, place and time, scope of exam • limited only to the parties

 must to alert to particular discovery device and how the different devices work differently and how you want to use them to get info  Who must respond? • Rule 45 – permits subpoena on a non-party – can either require non-party to appear for deposition or grant access to documents – not provision for serving interrogatories on non-parties  What type of information is being sought? Type of material. A way of alerting yourself to what you are using. In Kozlowski – it seemed that a document request was being used to get something that might be obtainable by interrogatory and not document request because document request gets only specifically what is requested – is reply that it doesn’t exist, get nothing – an interrogatory requires the responding party to create something that hasn’t been produced before – the answer – so there might be different ways of getting it

o Duty to search for information – a document request seeks all material in custody or under the control of the responding party. An Interrogatory requires some reasonable effort to assemble responding information.

o Duty to Supplement - R 26(d) → moratorium on formal discovery until conference  and there has to be a discovery devised and discussed 26(f)  R 26(e) – incomplete responses or disclosures must be supplemented

- Analytical Approach to Discovery o What is being sought? How does device operate? What does request cover? o If the other party did not request it, do you do not have to give it to them unless you are planning to use it yourself

o Objections to Discovery:  Relevance – is the stuff sought really relevant? • What is being sought? • How relevant is material being sought? o What issue in the lawsuit might this bear on? o What legally bears on the outcome of the lawsuit? o Whether D can pay the judgment does not bear on the legal resolution of the judgment o Importance is whether it is legally, not practically relevant o Does the actual data being sought tend to prove the existence or non-existence of a point that is legally in issue in the lawsuit? • In Ross: the financial data relevant b/c a punitive damages claim may depend on amount of wealth of a party – the material need not be essential to the resolution of the lawsuit for it to be relevant. Info about P’s ability to prove damages may not be important if P fails to prove liability, but it is still relevant because damages are an issue at the case – so any info that goes to the extent the damages of the case is still relevant • Ross: P claims that D circulated defamatory letters – 4 issues dealing with discovery o P sought net worth of D – ct said that financial records were irrelevant at this point because no damages had been awarded yet – Marcus says the court was wrong o P wants discovery about P’s attorney because he was a testifying witness – ct dismissed b/c privileged attny/client relationship o P seeks names of other employers who complained about D – ct said irrelevant b/c issue whether D liable to P o Seeks P’s psychiatric history. P tried to invoke Dr.-Patient privilege – ct says that by suing for mental anguish, must give D a chance to prove there was no claim

 Confidentiality • Rule 26(C) – Protective orders o Authorizes a court to protect against certain kinds of invasions o Requires:  Motion for protection to be made  Showing of good cause  Certification of good faith effort or attempt to settle the matter without the court o Controls employed may be one or more of the following:  That disclosure of discovery is not to be had  Disclosure of discovery is to be had on specific terms  Discovery be had with only a certain method  Discovery scope be limited to certain matters  Discovery be conducted in privacy of court only  Sealed depositions only to be opened by the court  Trade secrets or confidentiality not to be revealed o Ross – considerable respect to confidentiality of financial materials – probably incorrect in the question of timing under the NY law for proof of punitive damages amount, might be justified because of the high confidentiality being sought and the low need to get specific numbers o Coca Cola – suitable concern about invasion of confidentiality for the formula of coke  Burden • Rule 26(B)(2) – called the proportionality provision – instructs judges to limit discovery where it would pose an undue burden on the responding party  Courts can limit length and number of depositions and interrogatories  Discovery shall be limited if court determines that it is: • Unreasonably duplicative or cumulative • Obtainable from a more convenient less expensive source • Unduly burdensome or expensive in comparison to o The needs of the case o The amount in controversy o The limitations on the parties resources o The importance of the issue at stake in the litigation o The likely benefit of the discovery • The court may act on its own to limit discovery o depends on a comparison of the burden and the relevance of the information being sought o How important is the information to the claim or defense of the party seeking it and how great is the burden on the party asked to provide it? o Is there a less burdensome way of getting what the discovering party wants? o Objecting party must be specific and persuasive about the nature of the burden o Kozlowski – sears did not provide substantial information as to why the document requests were too burdensome

- Immunity to discovery o Privilege?  Is the material being sought privileged? There are evidentiary privileges, attorney-client, that guard against disclosure of confidential communication between specified people, attorney-client and doctor-patient.  Must be alert to facts that might provide a basis for such privilege  Rule 26(b)(1) o Work Product  two questions: • Is the material protected? • Is it work-product? • Was it prepared in anticipation of litigation?  Rule 26(b)(3) – may only obtain work-product (prepared in anticipation of litigation) if: • There is substantial need for the information to help prepare the case and • Cannot obtain the information without undue hardship • Work-product includes – mental impressions, conclusions, and legal theories • Communications to counsel may be obtained if recorded and only in extreme cases • Hickman work product doctrine – covers everything prepared by the attorney including intangibles in preparation for litigation • Witness statement: R 26(b)(3) witness may demand to get a copy without formal discovery • Opinion work-product: material that discloses the legal analysis or mental impression of the lawyer – if the material that is protected should be disclosed because the other side has made a substantial need, the court should protect against revealing opinion work-product by covering it up or blacking it over – redacting • Work Product is protected if: o It is a tangible work product – paper o Was prepared in anticipation of litigation by an attorney or other agent • Even if need is shown, cts will not allow discovery of attorney’s opinions o Experts  Testifying Experts • A party must designate the people it will call as expert witnesses • Rule 26(a)(2) – requires broad disclosure o experts must submit a written report containing:  all opinions and statements to be used in court  the basis and reasons for the opinion  data and information upon which the opinion is based o Doesn’t require reports from full-time employees • Rule 37(c)(1) – Penalty to a party that does not disclose – can’t use the information of even sanctions o will be invoked to prevent those not disclosed as testifying witnesses from presenting any new material or changing their initial stories • Rule 26(b)(4)(a) – a party may depose anyone identified as a witness o the opposing party may depose an expert who will be testifying o presents a rule 37(c)(1) type situation – often the court will keep an expert from presenting new information or changing their story if it has not been properly disclosed to the opposing side – supplementation requirement  Non-testifying Experts • Rule 26(b)(4)(B) – the court should order discovery by opposing side only in the showing of extraordinary circumstances – expense is not usually such a circumstance o What would be?  Shell – if it were now impossible to replicate the work – the examination is no longer possible – the cracking unit was demolished  Or – there are no experts left available – might suffice • This protection only provided for individuals specifically retained in preparation for litigation • Full-time employees are debatable – if the employer says that he is relying on all on them, you can’t talk to any of them, even about what happened on the day of the event – because discovery regarding this information about this particular event that those retained folks knew about before they were specially retained should be discoverable in any event. • May be able to obtain witness’s statements by asking the witness to ask for a copy

o Sanctions  Rule 37(C)(1) – semi-automatic prohibition on using things that should have been turned over, but weren’t. • there can be a question as to whether there was an obligation disclose – if there is a substantial justification or if the there is no harm to the other side, the exclusion rule does not apply  Rule 37(C)(2) – if a party fails to admit the genuiness of any document or the truth of a matter as requested, the requesting party may apply for reasonable expenses incurred in making that proof, including reasonable attorney fees  Rule 37(a)(2) – motion to compel discovery • Rule 37(d) – full failure to respond to discovery request – other party can go directly for sanctions • Can’t immediately obtain sanctions when the other party does not comply with discovery. Must make a motion to compel disclosure shoeing that the moving party has made a good faith effort to obtain discovery 37(a)(2)(a). • Before making a motion, must go to the other party and try and get it from them of tell them you are going to make a motion to compel • There must be a violation of the order before sanctions can be imposed  Things to consider in failure to comply with discovery: • Was the order violated? – be alert to arguments that the order was not violated. And the party, who did not do much in response, nonetheless can say that is all you told me to do. Seep 2 in sanctions requires a closer focus on the actual order than step 1 • Whether the violation was the offender’s fault – the due process clause prohibits courts from imposing sanctions if it was not their fault o Fault must be related to the merits of the case (show relation to the merits by showing that the information not turned over infers that the party can’t win the case).  Choosing Sanctions: • There is not a requirement that the judge impose the most extreme sanction. District judges can choose how much of a sanction is necessary to cure the harm resulting from the non-compliance. General deterrence deters the wrongdoer from future wrongs – sanction powers can be abused, must always consider the arguments from both sides • Ct. of Appeals – can’t question the imposition of a lower court’s sanctions, but can decide if sanctions were imposed too early • Courts won’t sanction harshly unless it goes to the merits of the case – everyone deserves their day in court • Courts will almost never dismiss the case entirely – if there has been some decision on the merits, P can never go back to the court on the same issue – tricky rules

● Adjudication

- Overview: o 6 things to deal with in adjudication:  Taking the case from the jury (the big issue) • have a 7th amendment right to a jury trial – here, dealing with sanctions where the judge decides that there is no need for a jury trial – material is such that can make a directed verdict/judgment as a matter of law (JMOL) or summary judgment  Motion for a new trial  Remittitur – judge says verdict/money award is too high and unless P accepts less money, will grant a new trial  Jury instructions that the judge gives  Restricting what the jury does  Juror impeachment of the verdict – finding out what the jurors did when judge decides whether to let the verdict stand o Burden of Proof  Burden of Persuasion – getting the jury to accept your version. Must be based on a preponderance of evidence (>50%) • Unless persuaded that the P has proved the elements of his claim, must decide for the D  Burden of Production – if come up with enough evidence for a reasonable jury to decide, then will send it to the jury. If you don’t meet this burden, the judge can say you loose • Burden of production asks about the X point – the point where the evidence is strong enough to permit a jury to decide (is different for each judge and jury) • Also have some point Y – where the evidence is so compelling that it doesn’t have to go to the jury, decision who should win is obvious  Timing – when can the court decide not to send it to the jury: • Before trial – summary judgment • At trial – JMOL • When P rests • At the close of all evidence • After verdict – can only do this if also moved at the close of all evidence

- Summary Judgment (SJ)

o Rule 56  Either party may request SJ • 56(a) – P may move either 20 days after filing claim or after service of motion for SJ by the D • 56(b) – D may move for SJ at any time  Material considered • 56(c) – Pleadings, depositions, interrogatories, admissions and affidavits  Burden of Proof • 56(c) – moving party must make an initial showing that SJ is proper – even if it doesn’t have the burden of proof. • Must either show: o The other side has no evidence that something critical occurred o Have compelling evidence (such strong evidence that no reasonable jury could refuse to find for the moving party) o Early view – the party without the burden of proof had to make as strong a showing as one with the burden of proof to invoke SJ. o Addickes v. S.H. Kress – P was a white school teacher who was refused service at a lunch counter. P alleged a conspiracy between the police and D. Lower Ct granted SJ on the grounds that the P had failed to allege any of the facts from which the conspiracy might be inferred. The court ruled that the D did not meet its burden of establishing the absence of a policeman in the store, and so the P was not required to come forward with suitable opposing affidavits. o Modern View: Celotex v. Catrett – the S. Ct. liberalized the burden on a moving party and made it easier to obtain a SJ. P claimed injury due to exposure to asbestos products manufactured by D. P produced no evidence it was D’s products that caused the injury. Ct. granted SJ to D. • 56(e) – Nonmoving party – after the initial showing, the judge will look to the other party and ask how much time they have had to find something that will support their case (push it back beyond the Y point) and if more time will likely turn up something useful/relevant. o The nonmoving party must show that there remains a genuine issue of material fact to be decided o More than a scintilla of evidence is required. Slightest doubt standard – jury should decide issues of slightest doubt (no longer good law). o Arnstein v. Porter – P sued D for © infringement. D moved for SJ, denying he had ever seen or heard the P’s compositions or anyone else that has (P’s stooges theory). Ct. ruled that SJ was inappropriate because the compositions were similar and P’s compositions were widely distributed. SJ is inappropriate when there is any doubt whatsoever o Significant probative evidence is usually enough (enough evidence that a jury could find for the non-moving party) o Cannot rely on allegations in the pleadings as a defense o The evidence should be viewed in a light most favorable to the nonmoving party o If the non-movant would have the burden of production at trial, he must respond with sufficient evidence that a reasonable finder of fact could find in his favor – he must meet the burden of production o If the non-movant would not have the burden of production at trial, everyone agrees that the only way a movant may obtain summary judgment is by shifting the burden of production • SJ must be granted if based on the materials considered, there is no genuine issue of fact and the moving party is entitled to a JMOL. If there is a disputed material fact, the case must go to trail. • 3 different approaches to burden of production: o Traditional approach – moving party must prove absolutely that it didn’t happen. Other side only has to answer if the moving party moves it to the point where a reasonable jury could not find for the non-moving party. o Prof. Louie’s Approach – movant only has to meet a burden of production or to demonstrate that absence of proof of an essential element of the nonmovant’s case. o Prof. Currie’s Approach – other side should have to produce evidence no matter what. Problem – makes SJ too easy • Partial SJ – 56(d) – ct. may render a partial SJ (i.e. SJ on liability, but genuine issue as to amount of damages). • Disbelief/demeanor evidence – can’t use demeanor evidence in deciding if the case should go to the jury because the SJ decision might be appealed and to the App. Ct. demeanor evidence would be unavailable and since review needs to be available, demeanor evidence can’t count. o Demeanor evidence also doesn’t count in satisfying the burden of production of a party with the burden of proof  Dryer v MacDougall – P suing for libel and slander. D was granted a SJ. D produced evidence that everyone to whom the alleged defamation was published denied receiving such statements. P was relying on the jury not believing the testimony of these witnesses (demeanor). Ct. ruled that couldn’t use demeanor when have the burden of production • Sham affidavit doctrine – witness/party repeatedly answers questions one way in the deposition or interrogatory and then in an affidavit changes answers, the judge can treat the affidavits as a sham with respect to the genuine issue.

- Judgment as a Matter of Law (JMOL): o JMOL (formerly directed verdict – DV) – FRCP 50(a)  Requirements – 50(a)(2) • Must be made at any time before the case is submitted to the jury • Must specify the judgment sought • Must state the applicable rule of law and relation to the facts • Must be heard after the non-movant has been heard  Standard – 50(a)(1) • Moving party with burden of proof – can grant JMOL if there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party. • Ct. must weigh all the evidence in a light most favorable to the non-moving party • Ct. also may look to see if: o The jury was properly instructed o The evidence is sufficient to support the movant’s position o Special interrogatories contain proper standards of liability • Non-moving party w/ burden of proof – ct can’t weigh the evidence or access credibility (demeanor). If scientific evidence/historical facts present grounds for rejecting the burden, judge could say not the give it to the jury, but is still should go to the jury – a scintilla is not enough to satisfy this standard. • Galloway v. U.S. – P sued gov’t for disability payments claiming he was insane due to military service. Ct. granted a DV b/c P could not prove or provide any substantial evidence to show he was insane – 8year gap • Judge can reserve ruling on a JMOL and submit the case to the jury 50(b). Judge may want to do this because if he grants a DV and there is an appeal which wins, then a whole new trial will be necessary o Renewed JMOL (formally judgment notwithstanding the verdict – JNOV) – 50(b)  Requirements – 50(b) • Must have made a JOML motion before the case was submitted to the jury • Renewed motion must be made w/in 10 days after entry of judgment  Standards – same as JMOL  JNOV avoids the need for a 2nd trial because if the App Ct. reverses the judge’s JNOV, finding that the evidence was not sufficient to take the case from the jury, the jury verdict is reinstated o What about the 7th amendment? – does JMOL take away the right to a jury trial?  S.Ct. said that there were similar things in the past – demurrer to the evidence, motion for a new trial, etc. – so it’s ok.

- Motion for a New Trial

o Error in the first Trial  Source of info – how do you know that there was an error? • FRCP 49 – special verdicts and interrogatories (look to the record to see that no reasonable jury could decide as they did) o 49(a) – special verdicts – must be in the form of a special written finding upon each issue of fact (specific Q’s and A’s from which the judge can track the jury’s thought process). The jury does not decide directly which party should prevail on the law. Instead, the special verdicts should resolve all the material issues so the court can then enter judgment o 49(b) – general verdicts – asks who wins and how much. A.k.a. “great procedural opiate” – covers up what the jury did. Can be used to provide the judge w/ some info of what the jury did o 49(b) – if the answers are consistent with each other but inconsistent w/ the verdict, the judge can:  affirm the verdict  enter judgment in accordance w/ their answers  send it back to the jury  order a new trial o if the answers are inconsistent w/ each other and inconsistent with the verdict, the judge can:  send it back to the jury  order a new trial • FR Evid. 606 (b) – can’t get info from jurors unless it falls into 1 of the exceptions – extraneous prejudicial info improperly brought to the jury’s attention or outside influence. (It’s ok for a juror to bring in generalized outside info – are expected to). This only applies to questions about the validity of the verdict. If juror #3 pulled out a gun during deliberations, could get statements from the jurors in a felony trial for having the gun in the courthouse o People v. Hutchinson – juror said the bailiff rushed the jury to a verdict (was an outside influence) so the ct. said the motion for a new trial should be heard o CA – the requirement for how a juror may be heard to challenge the validity of a verdict is when there are overt acts. CA also says can look at what jurors said during deliberations – this is a backdoor into their thought process o Sopp v. Smith – juror went to the scene of the accident to investigate on his own

 What’s an error? – Grounds and standards for a new trial

• FRCP 59 – new trials and judgment amendments o 59(a) – a new trial may be granted on all of some of the issues in a jury trial of a trial w/o a jury for any reasons for which new trials have heretofore been granted. o 59(b) – timing – motion must be filed 10 days after the entry of judgment o 59(c) – Ct’s initiative – ct can order a new trial on it’s own initiative for any reason not specified in the motion after giving notice and an opportunity to be heard. The Ct. must specify the grounds for its decision and must order the new trial w/in 10 days after entry of judgment.  Improper jury instructions – If the judge gives incorrect JI’s, may be grounds for a new trial • FRCP 51 – at the close of evidence (or at some time earlier in the trial as approved by the Ct.) a party can submit proposed JI’s. The judge will determine what the instructions will be and if a party objects to them, must object before the jury begins deliberations. If the objection is not made, are stuck w/ the instructions o Mistakes about admissibility of evidence  Is it a harmless error? • FRCP 61 – if a mistake does not have a substantial impact on the verdict, don’t have to grant a new trial  Can the harm be limited? • Partial new trial – if the error only affects part of the case and that part is separate from the rest, can get a partial new trial on that part, i.e. damages. • Remittitur – when the verdict is too high, Ct. can consider using this. Ct. could propose to P that he accept less money and no new trial. How much can the Ct propose? o Minimum amount that the jury would have awarded – best protection for D’s rights o Amount the Ct itself believes should have been awarded o Maximum amount that a reasonable jury could have awarded – this is the majority view o Dimick v. Schiedt – P sued for injuries received in an auto accident, won at trial but wanted a new trial (so he could get more money). Ct. ruled additur is unconstitutional, but remittitur is OK because had been doing it for a long time

- Weight of the Evidence o If the verdict is against the “great weight of the evidence”, the judge can grant a new trail o Standard – “manifest injustice”  Judge is permitted to weigh the evidence (including demeanor evidence) to determine if there would be a miscarriage of justice to let the verdict stand (13th juror standard). Aside from this, standards are similar to JMOL.

- Newly Discovered Evidence o Is it evidence? o Is it important – must be important o Is it newly discovered? – If the party actually had it during the 1st trial, why give them a 2nd chance? o Is there an excuse for failing to find it before? – Fact that didn’t have it before may not be an excuse. Must show that the evidence could not be obtained by due diligence.

o FRCP 60 – Relief from Judgment or Order

 60(a) – can get relief if there were clerical mistakes in judgments, orders or other parts of the record out of oversight or omission. The Ct can correct this on its own initiative or motion  60(b) – ct can grant relief from a final judgment , order or proceeding if: • 60(b)(1) – there was a mistake, inadvertence, surprise or excusable neglect • 60(b)(2) – newly discovered evidence was found, which by due diligence could not have been discovered in time to move for a new trial • 60(b)(3) – there was fraud, misrepresentation or misconduct by the adverse party • 60(b)(4) – judgment is void • 60(b)(5)-(6) – judgment was satisfied, has been released or discharged, a prior judgment on which this decision was based is reversed, or some other justifiable reason. • Timing – for 1 – 3, must be made w/in 1 yr for entry of judgment. For 4 – 6, must be made w/in a reasonable time from when the judgment was entered or taken.



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