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Civil Procedure Outline

I.        The Adversarial System

A.     Four Lessons

1.      Doctrine

a.       Formal rules of litigation (FRCP)

2.      Strategy

a.       Practical considerations (time, money principle)

3.      Theory

a.       Different frameworks for understanding the civil litigation system

4.      Skills

a.       Actual practice (drafting a complaint, answer, negotiation)

B.     Theories of Adjudication − FRCP 1: Rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action. FRCP 1 does not provide much guidance. Therefore, the three theories below are applied

1.      Fair Fight

a.       Judge is passive referee that simply follows and enforces the rules

b.      The only interests are those party to the litigation.

c.       Mitchell v. A&K − Truck on the premises

2.      Justice Between the Parties

a.       Judge is active and corrects for disparities between the parties

b.      Only interests are those party to the litigation

c.       Conley − Black workers’ complaint lacks sufficiency but is accepted because need discovery

3.      Greater Good

a.       Judge is active and considers larger interests of society

b.      Takes into account third parties (other interest than just those before the court)

c.       Band’s Refuse − Judge called own witnesses and introduced own evidence

II.     Initiating the Lawsuit

A.     Plaintiff’s Claim (Complaint)

1.      Process

a.       File − FRCP 3: Action is started by filing the complaint with the court

b.      Serve − Complaint is given to the opposing party or parties

2.      Rules for assessing a complaint

a.       FRCP  8(a) − A pleading which sets forth a claim for relief shall contain

·        8(a)(1) − A short plain statement of the grounds upon with the court’s jurisdictions depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it;

·        8(a)(2) − Short, plain statement of a claim showing pleader is entitled to relief; and

§         Flaws to avoid

§         Missing an element

                                                                                                                                       i.      Concerns include

·        Δ cannot answer

·        Notice to the court

·        Flush out meritless claims

§         Negating an element

§         Establishing an affirmative defense

·        When flawed − Subject to motion to dismiss

§         Particularity

§         Beyond reasonable doubt that plaintiff can prove no set of facts to establish claim Connely = Mere possibility

§         Particular enough that can draw fair inference
Sutliff = fair inference

·        8(a)(3) − a demand for judgment for the relief the pleader seeks; relief in the alternative or of several different types may be demanded

b.      Background rules

·        Allegations taken as true

·        Allegations considered on their face (no evidence) Mitchell v. A&K

·        No legal argument Sutliff

3.      Notice Pleading − level of detail or specificity

a.       FRCP 12(b)(6) − complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that  plaintiff can prove no set of facts in support of claim

i.                     Mere possibility
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief

1.      Conely v. Gibson − Black union members sue for discrimination, defendant moves to dismiss for failure to state a claim, court holds for plaintiff

ii.                   Fair inference
Complaint must contain either direct allegations on every material point necessary to sustain a recovery or allegations from which an inference fairly may be drawn that evidence of material points will be introduced at trialSutliff v. Donovan

iii.                  Specific facts
Not good law Gillispie

b.      FRCP 12(e) – Request for the Π to give a more definite statement of the allegations in the complaint

i.                     Board of Harbor Commissioners
Facts: Oil discharged into waterway. Unclear who did it. D moves for more definite statement in order to frame an appropriate response pursuant to Rule 7. Court held for P.
Rule: Leans toward the fair inference standard. Information is specific enough b/c all of the elements are addressed.
(If P gives more definite statement that is still not specific enough can follow up with motion to dismiss)

c.       FRCP 12(f) − Motion to strike redundant, immaterial, impertinent and scandalous matter

4.      Policy considerations for determining whether the complaint is specific enough (background policy considerations for borderline cases)

a.       Sufficient notice to the D

b.      Allows investigation

c.       Provides early assessment of the merits

d.      Prevents a fishing expedition

e.       Who has access to the additional info

f.        Harm is worthy of the litigation

5.      Pleading in the alternative

a.       FRCP 8(e)(2): A party may set forth 2 or more statements of claim or defense alternately or hypothetically

i.                     If by the nature of the circumstance the P would not know which allegations are right

ii.                   Lack of knowledge – pleading in alternative is OK

iii.                  If facts should be known – pleading in the alternative not OK

iv.                 Can only collect on one of the claims

b.      McCormick v Kopmann (Car Crash Case)
Facts: McCormick dies in head on collision. Wife sues (1) bar owner (Huls) for over-serving alcohol  and (2) driver (Koppman) for crossing over the center line, causing the collision with her husband. Koppmann moves to dismiss b/c of contradicting allegations. Denied.
Rule: Pleading in the alternative is allowed where the P lacks knowledge about the key facts in good faith
Policy: Look at the models of adjudication

i.                     Justice between the parties − Should not be able to plead in the alternative if she knows the truth

ii.                   Fair fight − Should be able to use the evidence b/c it could be used against her

6.      Heightened Pleading Standard

a.       FRCP 9(b)– In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of the mind of a person may be averred generally

i.                     Strong inference standard

b.      PSLRA(Private Securities Litigation & Reform Act) − State with particularity facts giving rise to a strong inference that D acted with required state of mind

i.                     2nd Circuit – Strong Inference Standard (majority approach)

·        P must show motive and opportunity to commit fraud

ii.                   9th Circuit – Great Detail Standard

·        P must plead with great detail for deliberately reckless OR conscious misconduct (allegations in detail of who, what, when, where, how)

c.       Background policies for general particularity and heightened pleading

i.                     Giving notice to the D and the court

ii.                   Sometime giving the court the ability to assess the merits

iii.                  Preventing fishing expeditions

iv.                 Being attentive to who has the factual information

d.      Ross v. Robins (Faulty Birth Control Case) – 2nd Circuit
Facts: Ross purchases shares of Robins. Robins did not report safety and efficiency problems with the Dalkon Shield, but knew about them. After FDA made a public disclosure of the problem, stock prices fell. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Move to dismiss granted. P appeals.
Rule: Cases involving the Private Securities & Litigation Reform Act must meet a heightened pleading standard. . . strong inference standard.

e.       Cash Energy v. Weiner (Environmental Cleanup Case)
Cash Energy engaged in storage and/or transfer of chemical solvents on a site adjacent to Weiner’s property. Weiner believes his land has been contaminated as a result of this activity. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Court grants motion to dismiss. P appeals.
Rule: Court holds cases involving CERCLA to heightened pleading standard, but this is not the law.

f.        Leathermann v.Tarrant County (Drug Bust Case)
Facts: Tarrant Co. obtains search warrants. Homeowners claimed assault. Rule: Rule 9(b) only applies to cases involving fraud, mistake or PSLRA. Rule 8(a)(2) still stands otherwise. Cash Energy is NOT the law. Rely on Leatherman.

7.      Voluntary dismissal

a.       FRCP 41(a)(1) − P can dismiss the case unilaterally as long as it is before service of an answer or a motion for summary judgment. If after the answer or motion, must have stipulation of both parties.

b.      FRCP 41(a)(2) − If parties are not in agreement, will need dismissal by order of the court

i.                     First time dismissed without prejudice

ii.                   Second time dismissed with prejudice

iii.                  If court doesn’t otherwise say, it is dismissed without prejudice.

c.       Reasons for voluntary dismissal

i.                     To file in another jurisdiction (don’t like the judge)

ii.                   A way to avoid sanctions under Rule 11

iii.                  If judge may grant a motion to dismiss under Rule 12, might want to pre-empt the ruling

iv.                 The SOL may be running so just decide to go away quietly

B.     Defendant’s Response

1.      RULE 12 MOTIONS

a.       Rule 12(a) − Timing to file responsive pleading

i.               12(a)(1)(A) − Answer complaint w/in 20 days

ii.             12(a)(4)(A) − After filing and serving 12(b)(6) motion, wait to hear back from court

iii.            12(a)(4)(A) − 12(b)(6) denied then must answer within 10 days

iv.           12(a)(4)(A) − If court postpones ruling on 12(b)(6), must answer withing 10 days

v.             If court grants motion to dismiss do not need to answer

vi.           12(a)(1)(A) − Grants leave to amend, court will specify timing

vii.          12(a)(4)(A) − If court denies motion to strike then must answer within 10 days

viii.        12(a)(4)(B) − If court grants motion to strike then must answer within 10 days

Timing under 12(a)

Within 20 days

Within 10 days


Answer complaint


File and serve a 12(b)(6) motion

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

12(b)(6) motion is denied


Court postpones ruling on 12(b)(6) motion

12(a)(4)(A) after notice by court

12(b)(6) motion is granted


Grants leave to amend

12(a)(1)(A) Once P has amended, court will specify timing

Denies 12(e) motion for more definite statement


Grants 12(e) motion for more definite statement

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


b.      Rule 12(b)
(b)(1) − Court lacks jurisdiction over the subject matter of the suit
(b)(2) − Court lacks proper jurisdiction over D
(b)(3) − Court is not the proper location for the suit; improper venue
(b)(4) − Insufficiency of process
(b)(5) − Insufficiency of service of process
(b)(6) − Failure to state a claim upon which relief may be granted

i.                     Motion to dismiss flaws

1.      Missing an element

2.      Negating an element

3.      Establishing an affirmative defense

ii.                   Use Conely and Sutliff standards to assess whether 12(b)(6) should be granted

iii.                  Court is limited to the four corners of the complaint and must take all of the allegations as true

(b)(7) − Failure to join a party

c.       Rule 12(c) − Motion for judgment on the pleadings (after the complaint and answer are done)

i.                     Vehicle for the D to answer

ii.                   For failure to state a claim

iii.                  Motion by the P if the Δ admits all of the relevant allegations

iv.                 Can be just like motion to dismiss for failure to state a claim, but is normally after the answer; same analysis

v.                   Must be brought forward without undue delay

d.      Rule 12(e) − Motion for a more definite statement

i.                     Usually used b/c unintelligible, not for want of detail

ii.                   If you understand what the P is saying but want more detail, some courts grant the motion; others don’t (e.g. US v. Board of Harbors)

e.       Rule 12(f) Motion to strike

f.        Rule 12(g) − All then available Rule 12 motions must be consolidated into one pleading. All defenses not brought are waived except as under 12(h)

g.       Rule 12(h): Waiver or preservation of certain defenses

i.                     12(h)(1) − Disfavored defenses

·        Lack of personal jurisdiction – 12(b)(2)

·        Improper venue – 12(b)(3)

·        Insufficiency of process – 12(b)(4)

·        Insufficiency of service of process – 12(b)(5)

ii.                   12(h)(2) − Favored defenses

·        Failure to state claim upon which relief can be granted – 12(b)(6)

·        Failure to join a party – 12(b)(7)

iii.                  12(h)(3) − Most favored defenses

·        Lack of subject matter jurisdiction – 12(b)(1)


Rule Explanation




Lack of subj matter jurisdiction

Most favored 12(g), 12(h)(3)

Bring at any time


Failure to state a claim upon which relief can be granted

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits


Failure to join a party

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits


Lack of personal jurisdiction

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

Will be waived forever if you did not bring it with other Rule 12 motions


Improper venue

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

Will be waived forever if you did not bring it with other Rule 12 motions


Insufficiency or process

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

Will be waived forever if you did not bring it with other Rule 12 motions


Insufficiency of service or process

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

Will be waived forever if you did not bring it with other Rule 12 motions

2.      DEFAULT

a.       FRCP 55(a) Default entry by the clerk when the Δ has failed to respond

b.      FRCP 55(b) Default judgment by
(b)(1) − Clerk if the award amount is certain; have to give 3 days notice
(b)(2) − Court, P must show damages

c.       FRCP 55(c) Setting aside entry of default for good cause shown; if judgment has been entered, may likewise set aside under Rule 60(b)

d.      FRCP 60(b) relevant grounds for setting aside default judgment would be mistake, inadvertence, excusable neglect, surprise; this is more likely to not be set aside because it is that much more in the process

e.       Three factors courts use to evaluate setting aside (Shepard Claims)

i.                     Non-defaulting party will not be prejudiced

·        Witnesses, evidence, SOL

ii.                   Defaulting party has meritorious defense

iii.                  No culpable conduct by defaulting party

·        If no prejudice and has meritorious defense, then culpable conduct must be willful for default to the set aside

f.        Shepard v. Darrah
Facts: Shepard (independent claims adjuster) alleges that Darrah (insurance broker) failed to pay him for services rendered. After delivery of the complaint Darrah’s attorney misses filing date for answer due to confusion about extension
Rule: Default judgment will be set aside if P is not prejudiced, D has a meritorious defense and the conduct was not willful

3.      ANSWER

a.       Admitting or Denying

i.                     Admit an allegation as true

ii.                   Deny

iii.                  Lack knowledge or information sufficient to form a belief

iv.                 Hybrid- give more particular responses, combo of above

b.      Rules

i.                     FRCP 8(b) − D shall respond to each averment by either (1) admit, (2) deny or (3) lack of knowledge or information sufficient to form a belief

·        LKISFB is treated as a denial

·        If it is found that you have sufficient knowledge or info, then LKISFB is treated as an admission (David v. Crompton & Knowles)

ii.                   FRCP 8(d) − Failure to deny – All averments are taken as admitted when not denied. All averment to which no responsive pleading is required or permitted shall be taken as denied or avoided

iii.                  FRCP 10(b) − Form of pleadings. Each claim or defense should be in a separate numbered paragraph; one allegation per paragraph

c.       Purpose of the answer

i.                     Respond to the allegations

ii.                   Assert defenses

iii.                  Provide any counter or cross claims

d.      David v. Crompton & Knowles
Facts: David was injured by a shredding machine in a factory. Δ says they don’t have sufficient knowledge to respond an allegation, then want to move to amend the answer to a denial. Motion to amend denied.
Rule: If you claim lack of knowledge and are found to have knowledge, could have acquired the knowledge (“Should have known”) or the info was within your control (“Only one who could have known”), then you have improperly used lack of knowledge answer and your answer will be deemed admitted instead of denied.

e.       Affirmative Defenses (shield)

i.                     FRCP 8(c) − Affirmative Defenses (list is not exhaustive)

·        D must include in answer, answer to amended complaint, or motion to dismiss or lose them FRCP 12(h)(1)

·        D must raise the issue and the D must prove it

·        SOL is a common affirmative defense

·        15(a) says you may amend an answer to insert affirmative defense

f.        Counter Claim and Cross Claim (sword)

i.                     FRCP 13(a) Compulsory Counterclaims must be brought or lost

·        Must arise from same T&O weigh following factors

§         Logical relationship between the claims for them to be compulsory (liberal view)

§         Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims then the counterclaims are compulsory; if not, then they are permissive

§         Substantially same law applies

ii.                   FRCP 13(b) Permissive Counterclaims may be brought but do not have to; different T&O

iii.                  FRCP 13(g)Cross-Claim against Co-Party may be brought if same T&O as any of claims or counter-claims

iv.                 Purpose

·        Judicial efficiency − same jury, same case load

·        Consistency − Courts could rule differently on the same case or issue if raised at different times in different courts

·        Destroys P’s image

Type of Claim


Same T&O

Different T&O


Opposing Party

Compulsory 13(a)
Must be brought

Permissive 13(b)
May be brought



May be brought

Cannot bring


v.                   Wigglesworth v. Teamster’s Union
Facts: During union meetings, Wigglesworth was prevented from exercising his free speech rights. After the complaint was filed, Wigglesworth holds a press conference at which he accused the union of being mafia run and that certain union elections had been fixed. Δ files counterclaim. Δ files motion to dismiss under 12(b)(1). Motion to dismiss granted.
Rule: Test for same Transaction and Occurrence:
Logical relationship between the claims for them to be compulsory (liberal view)
Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims, then the counterclaims are compulsory; if not, then they are permissive
Substantially same law applies
NOTE: All of the above factors do not need to be met for there to be same transaction and occurrence

C.     Amended Pleadings

1.      Process for amending

a.       FRCP 15(a) − Party allowed to amend once as of right

i.                     Before a responsive pleading is served or

ii.                   If no responsive pleading is permitted, the party may amend within 20 days after it is served

Otherwise may only amend by:

(1) leave of the court or

(2) stipulation of the parties.

Leave shall be freely given as justice so requires

b.      FRCP 15(b) When issues not raised in the pleadings are tried by express or implied consent of both parties, they shall be treated as if they are part of the pleadings. Amended pleading allowed, but not required

c.       If a disfavored Rule 12 motion is not brought in the answer, you can still amend the answer to include this Rule 12 motion so long as it is in the 20 day period

2.      Standard for the court to allow a party to amend

a.       Leave to amend will be given freely when justice so requires

3.      Factors the court will take into account in denying leave to amend:

a.       Undue delay

b.      Bad faith

c.       Prejudice to the opposing party

4.      Relation back of an amended pleading

a.       FRCP 15(c) − Relation back of amendment

i.                     15(c)(2) Relation back of a claim – amending to add a new claim when the statute of limitations has run from the original service of the pleading, must be same T&O (T&O test as above)

ii.                   15(c)(3) Relation back of a party changing a party’s name or adding a party

·        Change the D or the name of the D

·        Name T&O  (T&O test as above)

·        Timing of notice – date of filing of original complaint + 120 days (Rule 4(m))

·        Form of notice

§         Can be informal, just need to notify the party

·        D is aware that but for a mistake of identity, he would have been named

§         Some jurisdictions say ignorance is not a mistake

iii.                  Swartz v. Gold Dust Casino
Facts: Swartz falls down stairs at the Gold Dust Casino. She alleges that the stair were thread bare, worn and slippery. Also, the stair violates the building code. Π files and serves a complaint against Gold Dust and Does I through V for negligence. Δ answers by denying the allegations. After discovery and interrogatories, Π discovered the true identity of Doe I and requests leave to amend their complaint. Δ files motion for summary judgment. Judge denies the motion for summary judgment. Motion for leave to amend is granted. Amended complaint is filed and served upon John Cavanaugh. Δ Cavanaugh raises 2-year statute of limitations as an affirmative defense in answer to amended complaint and moves for judgment on the pleadings.
Rule: Meets requirements for relation back

·        Changing the party or changing the name of the party − Yes, Doe I becomes Cavanaugh

·        Same transaction and occurrence − Yes, same day, same woman, same stairs (facts and evidence are the same); they are both negligence claims (doesn’t have to be the exact same claim)

·        Timing of the notice − Notice (not filing) within 120 days of the filing of the complaint; ONLY NOTICE OF THE COMPLAINT IS REQUIRED, NOT FILING

·        Form of notice − Cavanaugh got the amended complaint in the motion for leave to amend, also companies are so overlapped it is reasonable to assume that Cavanaugh would have known of the action

·        But for a mistake about identity − Cavanaugh knew but for a mistake of identity that they would have been sued
Cavanaugh would argue wasn’t a mistake, it was ignorance

iv.                 David v. Crompton & Knowles
Rule: Meets the requirements for relation back

·        Change the defendant − Yes, change Crompton to Hunter

·        Same T&O − Yes, same accident, law, etc.

·        Timing of notice − Maybe, Hunter is a division of Crompton (overlap of corporate entities)

·        Form of notice − yes

·        But for a mistake − Hunter would recognize that they would be on the hook for the machine; David thought Crompton was the manufacture. Maybe a mistake about ownership rights, not who is the manufacturer

D.     Rule 11

1.      FRCP 11(a) − Failure to sign a pleading, written motion or other written paper

2.      FRCP 11(b) − In representations to the court attorney is certifying that he has made a reasonable inquiry and that to the best of his knowledge, information and belief

a.       No improper purpose

b.      Claims, defenses or other legal contentions are supported by existing law or by a non-frivolous argument for the extension of existing law

c.       Allegations have evidentiary support

d.      Denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief

3.      FRCP 11(c) − Sanctions

4.      FRCP 11(d) − Rule 11 sanctions do not apply to discovery (Rules 26-37)

5.      Rule 11 Sanctions Process – 11(b)

a.       Basis under 11(b)(1)-(4)

i.                     11(b)(1) − Improper purpose, including delay

ii.                   11(b)(2) − No basis in existing law
(two components, only have to meet one)

·        Subjective − must believe had legal argument

·        Objective − must actually have legal argument

iii.                  11(b)(3) − No basis in evidence for the allegation or assertion

iv.                 11(b)(4) − No basis in evidence for the denial

v.                   Creates standards/duty

vi.                 Notwithstanding your good faith if knowledge or information was not reasonably researched, subject to sanctions

b.      Initiating Process − by motion or by court (no safe harbor when court initiates)

                                                               i.      Serve motion on party who then has 21 days to correct problem or motion is filed in court

                                                             ii.      Motion has to describe conduct

                                                            iii.      Motion has to be separate from any other motion

c.       Decision Process

                                                               i.      Court has to give party chance to respond

                                                             ii.      Describe conduct explicitly

                                                            iii.      Describe basis for sanctions

d.      Discretion

                                                               i.      Can violate the basis and not be sanctioned

e.       Type of Sanctions

                                                               i.      Designed to deter not to compensate, because court was using as cost shifting mechanism

                                                             ii.      Only strong enough sanction to deter conduct

                                                            iii.      Court can refer to state bar, or to go to school, reprimand

                                                           iv.      A represented party can be sanctioned

·        Not monetary if basis is 11(b)(2) because client is not expected to know the law

                                                             v.      Attorney’s fees and costs only available on motion

f.        Target

                                                               i.      Attorney

                                                             ii.      Firm

                                                            iii.      Party

Identify the action

Basis for sanction





Types of Sanctions

Target of Sanction


11(a): Failure to sign paper

Notify party, court


Shall.  11(a)

No other option



Signing, filing, submitting, or later advocating position with…

-improper purpose (b)(1)

-no basis in law (b)(2)

-no basis in evidence for allegation or assertion (b)(3)

-no basis in evidence for denial (b)(4)

Sanctioned if frivolous either:

-subjectively (belief) or

-objectively (no reasonable inquiry; frivolous legal argument) 11(b)

Party’s motion:

-serve 21 days before filing (safe harbor)

-describe conduct

-only if not corrected

-not combine with other motion 11(c)(1)(A)


-order to show cause (OSC)

-describe conduct at issue 11(c)(1)(B)

Notice and opportunity to respond 11(c)


-describe conduct

-explain basis for sanction 11(c)(3)

May.  11(c) Can use discretion

Goal: Deter, not compensate 11(c)(2)


-nonmonetary directive (go to classes)

-monetary fine to court

pay other side’s attorney’s fees or costs 11(c)(2)


-represented party not pay money under (b)(2).  11(c)(2)(A)

-attorney’s fees and costs only if on motion. 11(c)(2)

-no monetary sanction on court’s initiative unless OSC before voluntary dismissal or settlement. 11(c)(2)(B)

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

6.      Zuk
Facts: Zuk, psychologist, had EPPI record therapy sessions for rental. Writes books that has transcripts from session and gets copyright. Zuk furloughed (fired). Zuk requests copies of the tapes. EPPI ignores the requests. Requests them again 1994. Requests are denied.



III.         Discovery

A.     Analyze

1.      Proper use of device

a.       Must be described with reasonable particularity

2.      Responsive

a.       Did the party ask for it?

3.      RelevanceRule 26(b)(1)

a.       Reasonably calculated to lead to discovery of admissible evidence pertaining to claim or defense

                                                               i.      Merits

                                                             ii.      Background

                                                            iii.      Impeach/Corroborate

                                                           iv.      Clues

Ø      If relevant to claim or defense do not need to make showing

Ø      If relevant to subject matter, burden of proof shifts to party seeking discovery (need court order and good cause shown)

4.      Protected

a.       Privacy − Rule 26(c)

i.                     Annoyance, embarrassment

ii.                   Undue burden or expense − Rule 26(b)(2)

·        Other means, source for same information

·        Already been ample opportunity for discovery

·        Rule 26(b)(2)(iii)

§         How much is it in controversy

§         What are parties’ resources

§         Needs of case

§         How relevant

§         What are important issues

§         Are there alternative sources of information

§         Consider models of adjudication

iii.                  Trade secrets − Rule 26(c)(7)

·        Economic detriment

·        Secret not generally known

·        Injury has to be clearly defined, serious injury

·        Competitive disadvantage

·        Balance between harm of disclosure and necessity to litigation

b.      Protective Order − Rule 26(c)

5.      Privilege

a.       Elements

i.                     With client (or prospective client)

·        Upjohn − Modified control group test which stated that only those in corporation who are in a position to control or even take a substantial part in decision about any action which the corporation may take upon advice of attorney

§         Modification to protect parties (lower and mid-level employees) who disclose and in corporation will need lower level employees to disclose in order to find out what happened

ii.                   Legal advice

iii.                  Legal advisor

iv.                 Relate to advice

v.                   In confidence

6.      ProductRule 26(b)(3)

a.       Prepared in anticipation of litigation or for trial

b.      By or for another party, or by of for that other party’s representative (including attorney)

·        Party may obtain discovery of ORDINARY WORK PRODUCT (but not opinion work product) if:

i.                     Substantial need

ii.                   Party cannot get the substantial equivalent without undue hardship

·        In ordering discovery of such materials, court shall protect against disclosure of mental impressions, conclusions, opinions or legal theories of attorney or other representative (OPINION WORK PRODUCT)

§         Courts generally abide by this and protect against disclosure of opinion work product

§         9th Circuit (minority view) − Allows discovery of opinion work product if (1) pivotal issue and (2) compelling need (not applied to attorney opinion work product)

v     Must list in privilege log

B.     Discovery Devices

1.      Initial DisclosuresRule 26(a)(1)

a.       26(a)(1)(A) − Party must disclose (provide or describe) what she is going to use to support her claim or defense (do not have to provide that which is harmful at this stage)

i.         Potential witnesses (name, address, telephone)

ii.       Documents

iii.      Damages

iv.     Insurance

2.      DepositionsRule 30

a.       Testimony under oath that is recorded

b.      Reasonable notice

c.       Limited to 10 depositions

d.      One day, seven hours per depositions

e.       Only get to depose person once

f.        Third parties can be deposed (special rules apply)

g.       Rule 30(b)(6) − Describe in reasonable terms the category of person you want to depose, other side must provide the person that fits that category

h.       Objections to form

i.               Compound

ii.             Confusing/Unintelligible

iii.            Vague or ambiguous

iv.           Misleading

v.             Asked and answered

vi.           Argumentative

vii.          Mischaracterized witness testimony/Assumes facts not in evidence

·        If objections not made at deposition, waive right for answer not to be admitted into evidence later

·        Even after objection witness may answer, objections only serve to make answer inadmissible later

·        Rule 30(d)(1)

§         Instruct not to answer

§         Privilege

§         Protective order in place or going to seek one

§         Any objection must be state concisely, speaking objections not permitted

3.      Request for production (RFPs)Rule 34

a.       Describe a category with reasonable particularity

b.      30 days to respond (written response including objections)

c.       Rule 34(b) − Produce those documents that are in producing party’s protection, control or custody (as kept or in categories, but not scrambled)

d.      Rule 26(b)(5) − Privilege or work product

i.               Materials that are attorney-client privilege

ii.             Work product in preparation of litigation

·        Privilege log − Must create a log of those items that are privileged, describe in general terms with objection

4.      Interrogatories (Rogs)Rule 33

a.       Limited to 25 in number including subparts

b.      30 days to respond

i.               Written answers by attorney and signed off by party

ii.             Obligation to answer if reasonably obtainable

·        Rule 33(d) − If have to look through a large amount of records can just give other party records in lieu of answering (shift burden to requesting party)

c.       Contention interrogatories − Identify every fact (or all evidence) that supports your contention that X

i.               Most courts will not allow early on

ii.             Used to prove negative (to prove other side has no evidence of X)

5.      ExamsRule 35

a.       Parties or those in care, custody or control of party (read narrowly)

b.      Must be “in controversy”

c.       Good cause shown

d.      Must have stipulation by parties or court order

6.      Request for admission (RFAs)Rule 36

a.       Extension of pleadings

C.     Limitations on discovery

1.      Rule 26(b)(2)(iii) − Undue burden

a.       Outweighs likely benefits

b.      Needs of case

c.       Amount in controversy

d.      Parties’ resources

e.       Importance of the issue at stake

f.        Importance of proposed discovery in resolving the issue


IV.        Summary Judgment

A.     Rule 56(a)

1.      Claimant can move 20 days after commencement of action or after opposing party moves for summary judgment

B.     Rule 56(b)

1.      Defending party can move for summary judgment at any time

C.     Rule 56(c)

1.      Motion must be served at least 10 days before hearing (most courts require at least 21 days)

2.      Standard − Summary judgment shall be granted if moving party makes showing that there is no genuine issue as to any material fact

a.       What is fact at issue and why is it material?

i.                     Material if relevant to an element or affirmative defense

b.      Is there a genuine issue about it?

i.                     Is it plausible that could come out either way?

·        Adickes v. S.H. Kress & Co.

§         Key fact − Was there police officer in store?

§         Material to whether there was a conspiracy

§         D did not come up with enough evidence to initiate

§         D cannot do nothing in moving for SJ, must make some kind of showing (vague as to what this requires)

·        Celotex v. Catrett

§         Key fact − Was P exposed to D’s product?

§         Material to causation

§         Rather than showing through affirmative evidence, D made showing that absence of evidence on other side (contention interrogatories often used)

§         Absence of evidence − Courts are split on moving party’s burden

Ø      Point out there is no evidence (just state)

Ø      Point to evidence in record to show lack of evidence

D.     Rule 56(f)

1.      Not enough chance for discovery on issue (premature)

E.      Burden of production − Whether party has sufficient evidence to go to trial

F.      Burden of persuasion − Which party must convince trier of fact

G.     Party with burden of proof moves

1.      Every reasonable jury would conclude that it is more likely than not that moving party is right

2.      Ex. − Every reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Required to make initial showing

b.      Only if initial showing is strongly supported does opposing party have to respond

i.                     Burden of opposing party is to provide enough evidence to undermine moving party’s evidence sufficiently such that a reasonable jury could conclude that moving party is not more likely than not right

H.     Party who does not have burden of proof moves

1.      No reasonable jury would conclude that more likely than not that party opposing summary judgment is right

2.      Ex. − No reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Initial showing − Logically would make sense not to require initial showing, but if this were the case could be used as a weapon too easily

·        Celotex − Ambiguous which of two standard applies

o       Either merely point out that other side has no evidence

o       Or must do discovery to show that other side has no evidence

i.                     Burden of opposing party is to provide enough evidence that a reasonable jury could conclude that it is more likely than not right

ii.                   Note that since party opposing summary judgment will have burden of persuasion at trial, if moving party has met its burden, simply attacking the moving party’s evidence will not suffice to survive summary judgment

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