2. Learning About The Case (Service of Process, Pleading, Discovery)

Question 1

What is process?

Answer 1

Notice that the defendant has been sued. This usually consists of:

(1) a summons (formal court notice of suit and time for response) and
(2) a copy of the complaint

Question 2

Who can serve process?

Answer 2

Any nonparty who is at least 18 years old. Does not need to be appointed by a court.

Question 3

What are the three basic ways that process can be served?

plus alternative

Answer 3

1. PERSONAL SERVICE: papers are given to the defendant anywhere. However defendant will be immune from service in a forum if he is only there for court proceedings.
2. SUBSTITUTED SERVICE: process is left
   (a) at the defendant’s usual abode (doesn’t need to stay there everyday) AND
   (b) with someone of suitable age and discretion who resides there (doesn’t have to be a relative)
3. SERVICE ON D’S AGENT: only if receiving service is in the scope of agency (e.g., corporation’s registered agent, managing agent, or officer)

NOTE: You can use methods for serving process that are permitted by state law of the state where the federal court sits or where service is made. (e.g. state may allow service of mail whereas federal doesn’t)

Question 4

Waiver By Mail

Answer 4

• P mails to D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (stamped envelope).
• If D executes and mails waiver form to P within 30 days then D waives formal service of process.
• P then files waiver in court and it is effective once filed.
• If D fails to return the waiver form P has to serve D personally or by substituted service.
• If D doesn’t have a good cause for failing to return waiver then he has to pay the cost of service.

Question 5

“Return” of Service

Answer 5

The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath)

Note: If process server fails to file this report it does not affect the validity of service

Question 6

What is required for service of documents other than process?

Answer 6

Other documents (answer, other pleadings, motions, discovery), get served, but does not require a summons or formality. They are served by delivering or mailing the document to the party’s attorney or pro se party.

Note: Documents can be served by email if the party agrees

Question 7

How much time is given to respond to interrogatories?

Answer 7

You have 30 days to respond to interrogatories. If it was mailed you get three extra days.

Question 8

Complaint

definition and requirements

Answer 8

The complaint commences an action and requires:

1. Statement of grounds of subject matter jurisdiction
   - don’t need to allege grounds of PJ or venue
2. Short and plain statement of the claim, showing entitlement to relief
   - must plead facts supporting a plausible claim
3. Demand for relief sought (damages, injunction, declaratory judgment)

Question 9

What are the three matters that must be pleaded with particularity and specificity?

Answer 9

1. Fraud (look out for this one)
2. Mistake
3. Special damage

Question 10

What are the two ways defendant can respond to a complaint?

Answer 10

D can respond within 21 days after service of process (if waived service 60 days from when P mailed waiver form) by either:
1. Motion or
-motion for a more definite statement
-motion to strike (immaterial or scandalous)
2 Answer

Question 11

12(b) Defenses

Answer 11

Never waived, not even on appeal:
(1) lack of subject matter jurisdiction

Waivable so must be put in the first response:

(2) lack of person
(3) improper venue
(4) improper process (problem with the papers)
(5) improper service of process

Raise anytime through trial but not appeal:

(6) failure to state a claim
(7) failure to join indispensable party

Question 12

Defendant’s Answer

Answer 12

1. Admit
2. Deny
   
   • if you don’t deny then you admit
3. State that you lack sufficient information to admit of deny
   
   • has effect of a denial
   • duty to investigate things in your control

Question 13

What are the four classic affirmative defenses?

Answer 13

1. Statute of Limitations
2. Statute of Frauds
3. Red Judicata
4. Self-defense

Note: If you have an affirmative defense you have to plead it in the answer

Question 14

Counterclaim

Answer 14

Claim back against the opposing party. D must respond under Rule 12 within 21 days.

Question 15

Compulsory Counterclaim

Answer 15

A claim that arises from the same transaction or occurrence as P’s claim. It must be filed in the pending case, or the claim is waived.

Question 16

Permissive Counterclaim

Answer 16

Claim that does not arise from the same transaction or occurrence. D is not required to file it in the pending case and may sue on it in a separate case.

Question 17

What effect does subject matter jurisdiction have on counterclaims and crossclaims?

Answer 17

If the case is in federal court we must assess whether it invokes diversity or FQ jurisdiction. If so, it’s ok. If not, try supplementary jurisdiction.

Question 18

Crossclaim

Answer 18

A claim against a co-party that must arise from the same transaction or occurrence as the underlying claim. But it is not compulsory.

Question 19

Amended Pleadings

four fact patterns

Answer 19

1. RIGHT TO AMEND
   
   • P has a right to amend once within 21 days after D serves first Rule 12 response
   • D has a right to amend once within 21 days of serving his answer
2. NO RIGHT TO AMEND
   
   • Seek leave of court and amendment will be granted if justice so requires:
     (a) undue delay
     (b) prejudice
     (c) futility of amendment
3. VARIANCE
   
   • Where evidence at trial doesn’t match what was pleaded and D didn’t object, at or after trial P can move to amend the complaint to conform with the evidence. If D objects then evidence is inadmissible.
4. RELATION BACK (amend after statute of limitations has run)
   
   • New Claim: amended pleadings relate back if they concern the same transaction or occurrence as the original pleading and is treated as though it was filed when original one was
   • Change Defendant: if (i) it concerns the same transaction or occurrence as the original; (ii) the new party knew of this case within 120 days of its filing; and (ii) she also knew that, but for a mistake, she would have been named originally.

Question 20

Supplemental Pleadings

Answer 20

Set forth things that happen after the pleadings, unlike amendments which concerns things that happened before.

Note: There is no right to file supplemental pleadings so it is always within the courts discretion. But they will usually admit them if it doesn’t cause delay or prejudice.

Question 21

Rule 11

bedrock of professional responsibility

Answer 21

Applies to all documents except discovery. When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

(1) the paper is not for an improper purpose, and
(2) the legal contentions are warranted by law (or nonfrivolous argument for law change), and
(3) the factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

Note: This certification is made every time you present a position to the court (continuing certification) and if violated sanctions may be ordered against the party, attorney, or firm. Often non-monetary, but if monetary then paid to the court.

Note: Purpose is to deter, not punish

Question 22

How is a motion for sanctions under Rule 11 brought?

Answer 22

• You serve the motion on the parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.
• Court can raise Rule 11 problems sua sponte. Usually issues an order to show cause why sanction should not be imposed and must give a chance to be heard before imposing a sanction on anyone.

Question 23

What are the three REQUIRED discovery disclosures?

Answer 23

1. INITIAL DISCLOSURES: unless courts say or parties stipulate otherwise, within 14 days of the Rule 26(f) conference each party must disclose:
   a. identities of persons who have discoverable info that you (the disclosing party) may use to SUPPORT your claims or defenses
   - name, telephone, number and subjects on which they have info
   - if not disclosed party cannot use witness in the case unless the failure was substantially justified or harmless.
   b. documents and things that you may use to SUPPORT your claims or defense (copies or descriptions are fine)
   - photos, recordings, electronically stored info (ESI), tangible things
   - if not disclosed then you can’t use that material in the case
   c. computations of monetary relied and documents/ESI supporting it
   d. insurance coverage
   - defendant must disclose any insurance that might cover all or part of the judgment in the case even if it won’t be admissible at trial
2. EXPERT WITNESSES: later in the case, at the time directed by the court each party must identify expert witnesses who may be used at trial
   a. identification and written report prepared by expert witness including (i) opinions EW will express, (ii) bases for the opinion, (iii) facts used to form the opinions, (iv) EW’s qualifications, and (v) how much EW is being paid.
   b. but earlier drafts of EW report are work product. So are communications between the lawyer and the EW.
   c. does not include consulting experts. Facts known and opinions held by consulting experts are generally not discoverable unless there are exceptional circumstances
   d. if not disclosed you can use EW unless failure was justified or harmless
3. PRETRIAL DISCLOSURES: must give detailed information about trial evidence, including identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial

Question 24

Expert Witness

Answer 24

Someone who, because of special skill or training, may give opinion testimony. Hired to render an opinion in this case.

Note: There may be other people with expertise who testify but who are not expert witnesses under the rule

Question 25

When can a party first request discovery from other parties?

Answer 25

After the rule 26(f) conference

Question 26

What are the seven (7) discovery tools?

Answer 26

1. DEPOSITIONS: party (served notice of deposition) or non-party (subpoenaed) gives live testimony from her present recollection under oath in response to questions (written or oral) by counsel or pro se parties. Deposition is recorded and a transcript can be made.
   
   • nonparty can be required to travel 100 miles from where she resides or is employed unless she agrees otherwise
   • if unsure who to dispose serve notice of deposition to party who does know and describe the matters for examination so she can produce the right person
   • use of deposition at trial is subject to all rules of evidence
   • Limitations: CANNOT
     a. take more than 10 deposition of same person
     b. depose the same person twice without court approval or stipulation
     c. exceed one day of seven hour unless court orders or parties stipulate
2. INTERROGATORIES: written question (no more than 25) to be answered by only parties under oath from info that is reasonably available (control) from 30 days of service.
   
   • if answers are in business records but would be too burdensome to find, the responding party can allow the requesting party to have access to the records.
   • you cannot use your own answers at trial
3. REQUESTS TO PRODUCE: requests that party or nonparty (subpoena) make available for review and copying documents or things, including ESI, or to permit you to enter designated property to inspect, measure, etc. Person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections.
4. MEDICAL EXAMS (physical or mental): must get a court order showing that (i) that the person’s health is in actual controversy and (ii) good cause. Person must be a party or someone in the party’s custody or legal control.
   
   • the party seeking the order chooses the licensed person to perform the exam
   • the party who submits to the test can request and obtain the exam but by doing so he waves any privilege he might have concerning testimony about all examination of that medical condition
5. REQUEST FOR ADMISSION: written request that parties (only) admits things and if party fails to deny specifically or to object to the request in writing within 30 days it is deemed admitted.
   
   • responding party can says she doesn’t know only if she states that she made reasonable inquiry and can’t find enough info from which she can admit or deny
6. Parties sign substantive answers to discovery under oath. every discovery request and response is signed by counsel certifying (1) it is warranted, (2) it is not interposed for improper purpose, and (3) it is not unduly burdensome
7. DUTY TO SUPPLEMENT: if there are new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect and you must supplement your response.

Question 27

What is discoverable?

Answer 27

You can discover anything relevant (reasonably calculated to lead to the discovery of admissible evidence) to a claim or defense but it itself doesn’t have to be admissible.

Note: harmful things don’t need to be disclosed under required disclosure, but may be discoverable using the regular discovery tools.

Question 28

Proportionality Doctrine

discovery

Answer 28

Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue.

Question 29

Evidentiary Privilege

discovery

Answer 29

You can object to discovery on the basis of evidentiary privilege (e.g. attorney/client communications)

Question 30

Work Product “trial preparation materials”

Answer 30

Materials prepared in anticipation of litigation generated by a lawyer or by a party or any representative of party. Not called attorney work product, just work product.

Question 31

Absolute v. General work product

Answer 31

Absolute work product includes mental impressions, opinions, conclusions and legal theories and is always protected from discovery.

But qualified work product (a witness statement) can become discoverable if opposing party can show (i) substantial need and (ii) that it was not otherwise available.

Note: A party has a right to ask for his own statement

Question 32

How do you assert privilege or work product?

Answer 32

If you withhold discovery or seem a protective order based on privilege or work product, you must claim the protection expressly and describe the materials in detail. in a privilege log.

Note: privilege log list the materials protected by date, author, recipient, and privilege or protection claimed and must e in enough detail to allow the judge to determine whether the material is protected.

Question 33

What should you do if you inadvertently produce privileged or protected material?

Answer 33

Notify the opposing party promptly. The other party then MUST return, sequester, or destroy it pending decision by the court about whether there has been a waiver

Question 34

Protective Order

discovery

Answer 34

If the responding party thinks a discovery request subjects it to annoyance, undue burden, or expense or the request is cumulative and not proportional to the case she can move for a protective order certifying that she tried in good faith to get the info without court involvement (asked the other side to meet and confer). If the court agree it can:

(1) deny discovery,
(2) limit it, or
(3) permit it on certain terms

Question 35

Partial Discovery Request Response

and sanction

Answer 35

When responding party answers some questions but objects to others:

(1) the requesting party may move for an order compelling the party to answer, plus costs (including attorney’s fees) of bringing the motion. Court will decide whether the objection were legitimate
(2) if the party violates the order, RAMBO sanctions plus costs and could be held in contempt for violating a court order (no contempt for refusal to submit to medical exam)

Question 36

No Discovery Request Response

and sanction

Answer 36

When responding party fails completely to attend her deposition, respond to interrogatories, or to respond to request for production there is no need for an order to compel. Go directly to RAMBO.

Question 37

RAMBO Sanctions (D.E.E.D.S.)

Answer 37

1. Disallow evidence from the disobedient party as to issues regarding the discovery
2. Establishment order (establishes facts as true)
3. Enter default judgment against defendant if bad faith is shown
4. Dismiss plaintiff’s case if bad faith is shown
5. Strike pleadings of the disobedient party as to issues regarding the discovery