Civ Pro Midterm Final Version

Question 1

Zubulake & the issue of preservation?

Answer 1

1. issue a litigation hold
2. directly communicate with key players
3. instruct all employees to produce electronic copies of their relevant active files

Question 2

28 U.S.C. 1331?

Answer 2

• subject matter jurisdiction
• courts have authority to hear civil actions

Question 3

28 U.S.C. 1332?

Answer 3

• transferring venue
  1. citizens of different states
  2. over $75,000
  3. court’s discretion

Question 4

Rule 56: Summary Judgment?

Answer 4

granted when there is no genuine issue as to any material fact

Question 5

Rule 50: Judgment Notwithstanding the Verdict?

Answer 5

granted when evidence is so strongly in favor of moving party, that no reasonable person could arrive at a contrary verdict

Question 6

Rule 45: Subpoenas?

Answer 6

can subpoena outside parties if their information is relevant to parties in the case

Question 7

Rule 37: Payment in discovery process?

Answer 7

party in error or fault is responsible for cost of litigation

Question 8

Rule 36: Requesting a party to admit or deny?

Answer 8

• permits a party to demand that another party admit or deny specific factual statements
• other party has 30 days
• no response, she is deemed to have admitted

Question 9

Rule 35: examination by healthcare professional?

Answer 9

• permits a party to require someone to undergo relevant examination by a professional
• physical or mental that is relevant to the case
• good cause to order the exam
• court determines the examiner

Question 10

Rule 34: access to documents?

Answer 10

• one party may require another party to allow access to documents (electronic or tangible)
• 30 days to respond
• only be served on parties, NOT nonparties

Question 11

Rule 33: Interrogatories?

Answer 11

• Formal written questions served by one party on another during pretrial discovery. The party must sign the answers to the interrogatories under oath.
• sent to parties, NOT nonparties
• 30 days to respond
• can object, must provide reason why

Question 12

Rule 30: depositions?

Answer 12

• A discovery procedure, conducted without direct judicial oversight, in which witness testimony is taken under oath and memorialized by a court reporter.
• party OR nonparty
• one day, seven hours
• can request documents if you provide adequate notice and it is relevant

Question 13

Rule 26: The Duty to Disclose?

Answer 13

• (a) requires each party to give information to the other party at three points in litigation WITHOUT request by a party
  1. initial required disclosures: identify persons who have discoverable information + produce documents on discoverable material + calculation of damages + identify any insurance she may have
  2. identification of expert witnesses
  3. pretrial required disclosures
• (b) parties may discover nonprivileged matter that is relevant, set forth every contention it will raise at trial
• (f) parties must meet and confer
• (g) authorizes the court to impose sanctions

Question 14

Rule 20: Permissive Joinder of Parties?

Answer 14

• (a)(1): permits multiple P’s to join as if their claims arise from the SAME transaction or occurrence and raise at least one common question
• (a)(2): permits joinder of multiple D’s in the SAME circumstances if their claims arise from the SAME transaction or occurrence and raise at least one common question

Question 15

Rule 16: Pretrial Conferences; Scheduling; Management?

Answer 15

• requires the court to enter a “scheduling order”, usually within 90 days AFTER D is served with process
• pretrial litigation
• establishes deadlines for motions, amended pleadings, and discovery

Question 16

Rule 15: Amended and Supplemental Pleadings?

Answer 16

• gives parties right to amend their pleading in certain circumstances
• parties may move for “leave” to amend their pleadings at any time

Question 17

Rule 15: Amended and Supplemental Pleadings Elements?

Answer 17

(a)(1): amendments BEFORE trial, party may amend ONCE WITHOUT COURT’S PERMISSION IF…
- does so within initial 21 days after serving the pleading
- after initial 21 days?
- => opposing party’s consent
- => court’s permission (discretion) when justice so requires UNLESS THERE IS BRUUF (think like ruff)
- => => bad faith, repeated failure to cure deficiencies, undue dulay, unfair prejudice to opposing party, futility of amendment
- (a)(3): if party amends, opposing party must amend within the time remaining for the original response period OR within 14 days after service of the amended pleading, WHICHEVER IS LATER
- (b) court may allow pleadings to be amnded DURING trial IF
- => amendment will aid in the presentation of the case
- => will NOT prejudice the objecting party
- => objecting party has the burden to show prejudice, OR requested amendment MUST be granted
- (c): “relating back” allows amendments to toll statute of limitations when making amendments
- => “same nuclues of operative facts”
- (c)(1): when an amendment relates back:
- => (a) applicable SoL allows relation back
- => (b) amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading
- => (c) the amendment changes the party or the naming of the party against whom a claim is asserted (knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity)
- (c)(2): knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity (90 day limit)
- (d): new facts arise after the original pleading was filed, a party can file a supplemental pleading to add those facts.
- => party must get court’s permission UNLESS the opposing party consents
- court CAN ALLOW the supplemental pleading EVEN IF the original pleading was DEFECTIVE

Question 18

Rule 12: Defenses and Motions to Dismiss?

Answer 18

• procedural defenses
• how a D can respond to a complaint and various motions that can be made BEFORE filing an answer

Question 19

Rule 12: Defenses and Motions to Dismiss Elements?

Answer 19

• (a) D must serve an answer within 21 days after being served with the complaint
• if the P has waived service, D have 60 days
• (b) provides a nonexhaustive list of defenses allowed to the D, not need to respond to if allegations are true, RATHER the the case has some defect that should cause the court to DISMISS answer, IF NOT, those defenses are WAIVED
• (e) RARE MOTION, asks court to clarify complaint that is vague
• (f) permits any party to strike a part of the document (or entire), to remove irrelevant information from a document