Civil Procedure

Question 1

Personal jurisdiction - framework

Answer 1

1. Satisfy a statute (state long-arm statute)

2. Satisfy the Constitution (Due Process)

Question 2

Personal jurisdiction - statutory

Answer 2

1. Many statutes provide specific bases
   - Domiciled in state
   - Do certain things in the state (e.g., commit a tortious act, conduct business)
   - Served with process in state
2. California statute reaches the constitutional limit

Question 3

Personal jurisdiction - constitutional

Answer 3

Traditional rule: physical power over D (through presence, residence, or consent)

Modern DP standard: contact, relatedness, fairness

1. Minimum Contacts
   - Purposeful availment
   - Foreseeability
2. Relatedness of Claim to Contact
   - Specific jurisdiction: claim arises from D’s contact with forum
   - General jurisdiction: claim does not arise from D’s contact with the forum
3. Fairness
   - Convenience
   - State’s interest
   - Plaintiff’s interest
   - Other interests

Question 4

Subject matter jurisdiction - state court

Answer 4

Superior Court has general SMJ; only a few cases must be in fed court: bankruptcy, fed. securities and antitrust, and patent infringement

1. Unlimited civil cases: amt in controv. > $25K
   - Any claimant can recover any amount
   - P can seek general equitable relief (like a permanent injunction or declaratory judgment)
2. Limited civil cases: amt in controv. =< $25K
   - No claimant can recover more than $25,000.
   - P cannot get a permanent injunction or declaratory judgment or determine title to land
   - Discovery and other limits apply
3. Small claims cases: individ. P =< $7.5K; entity P =< $5k
   - Simplified procedures apply

Question 5

Preclusion - distinction between res judicata and collateral estoppel

Answer 5

Res judicata: claim preclusion
- Precludes more than one suit on a cause of action/claim

Collateral estoppel: issue preclusion
- Precludes relitigation of a particular issue litigated and determined before

Question 6

Preclusion - RJ requirements

Answer 6

1. Case 1 ended in valid final judgment on merits (not jurisdiction, venue, or indispensable parties)
   FRCP: Final when rendered
   CCP: Final when appeals concluded
2. Case 1 and Case 2 brought by same claimant against the same defendant
3. Case 1 and Case 2 asserted the same cause of action (or claim)
   - FRCP: One claim per transaction or occurrence.
   - CCP: One claim per PRIMARY RIGHT (e.g., single T/O might two claims; one for personal injuries and one for property damage)

Question 7

Preclusion - CE requirements

Answer 7

1. Case 1 ended in a valid final judgment on merits (not jurisdiction, venue, or indispensable parties)
   FRCP: Final when rendered
   CCP: Final when appeals concluded
2. Same issue was actually litigated and determined in Case 1
3. Issue was essential to judgment in Case 1; without issue, judgment would have been different

Question 8

Preclusion - choice of law

Answer 8

If Case 2 is in a different court system from Case 1 (e.g., federal vs. state), Case 2 court applies Case 1 court’s preclusion law

Question 9

Preclusion - CE - who is bound and who can assert

Answer 9

Who is bound?
- Parties, privies, represented by party

Who can assert?

• Parties, privies, represented by party OR
• Nonparties when:
• • Nonparty asserting against party/privy who had full and fair opportunity to litigate in Case 1 and could foresee multiple suits
• • Nonparty could not have joined easily in Case 1
• • There are no inconsistent judgments on record

Question 10

Responses - federal - overview

Answer 10

Response overview

• To avoid default, D must respond within 21 days after service of process.
• If D makes Rule 12 motion, and it is denied, D must serve answer w/in 14 days of denial

Response by motion

• Move as to issues of form
• Raise Rule 12(b) defenses

Response by answer

• Raise Rule 12(b) defenses
• Respond to allegations of complaint
• Raise affirmative defenses

Question 11

Responses - federal - pre-answer motion

Answer 11

1. Motion for more definite statement: pleading so vague D can’t frame a response (rare);
2. Motion to strike, which is aimed at immaterial things, e.g., demand for jury when no right exists
3. Raise Rule 12(b) defenses

Question 12

Responses - federal - answer

Answer 12

Raise Rule 12(b) defenses

Respond to allegations of complaint: admit, deny, or state lack sufficient information to admit or deny (can’t use if info public or in D’s control)
- Failure to deny can constitute an admission on any matter except damages

Raise affirmative defenses, e.g., SOL, SOF, RJ

Question 13

Responses - federal - Rule 12(b) defenses

Answer 13

Raise any time, even on appeal:
1. Lack of subject matter jurisdiction;

Raise in first response or waive:

2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficiency of process (problem with the papers);
5. Insufficient service of process;

Raise before or at trial:

6. Failure to state a claim;
7. Failure to join indispensable party.

Question 14

Responses - CA - overview

Answer 14

Response overview

• D must respond in an appropriate way w/in 30 days of service
• If D makes demurrer, and it is denied, D must serve answer w/in 10 days of denial

Response by demurrer

• General demurrer
• Special demurrer

Response by motion

• Motion to quash service of summons
• Motion to dismiss or stay for inconvenient forum
• Motion to strike
• Anti-SLAPP motion to strike

Response by answer

Question 15

Responses - CA - demurrers

Answer 15

General demurrer

• Failure to state facts sufficient to constitute a cause of action
• Lack of SMJ (unlikely in superior court)

Special demurrer

• Used to assert many (pretty minor) defenses
• Complaint is uncertain, ambiguous or unintelligible (equivalent to FRCP motion for more definite statement)

Question 16

Responses - CA - motion to quash service of summons

Answer 16

Special appearance to assert:

• Lack of PJ
• Improper process (problem with documents)
• Improper service of process

Must be made before or w/ demurrer, answer, or motion to strike, or else D waives these defenses

Must seek appellate review via writ of mandate w/in 10 days or lose appellate rights

Question 17

Responses - CA - motion to dismiss or stay for inconvenient forum

Answer 17

• CA motion for FNC

- Waived if it’s raised after a demurrer or motion to strike, but can raise after answer.

Question 18

Responses - CA - motion to strike

Answer 18

Party can file to strike all or part of any pleading; court may strike “irrelevant, false, or improper matter”

Question 19

Responses - CA - anti-SLAPP motion to strike

Answer 19

When P sues D for an act D took in furtherance of 1st Am rights, D can make an anti-SLAPP motion to strike; D is not supposed to make if P’s case is truly in public interest

If D makes showing that P’s cause of action arises from protected activity, burden shifts to P to show the probability of winning on the merits

If D wins her anti-SLAPP motion, can sue P for malicious prosecution; “SLAPPback” suit

Question 20

Responses - CA - answer

Answer 20

General denial: this is a short document, in which D simply denies each and every allegation of P’s complaint

Specific denials: respond paragraph by paragraph, as in federal court

Question 21

Claims - defendant - types and names

Answer 21

D may assert claims:

1. Against the plaintiff (an opposing party)
   - FRCP: Counterclaim
   - CCCP: Cross-complaint
2. Against a co-defendant
   - FRCP: Cross-claim
   - CCCP: Cross-complaint
3. Against an impleaded third-party defendant
   - FRCP: Impleader
   - CCCP: Cross-complaint

Question 22

Claims - defendant - claim against P - name of claim, requirements

Answer 22

1. Name: counterclaim (F) / cross-complaint (C)
2. Mandatory if arises from the same T/O
   - Raise or waive, although if you never had to answer never had to raise
3. Permissive if arises from diff. T/O
4. Raise in: answer (F) / separate document with answer (C)

Question 23

Claims - defendant - claim against co-D - name of claim, requirements

Answer 23

1. Name: cross-claim (F) / cross-complaint (C)
2. Must arise from same T/O
3. Always permissive

Question 24

Claims - defendant - claim against third-party D - name of claim, requirements

Answer 24

1. Name: impleader (F) / cross-complaint (C)
2. Must serve process on 3PD
3. Always permissive
4. If same T/O, 3PD and P can assert claims and defenses against each other

Question 25

Complaint - federal

Answer 25

NOTICE PLEADING!

1. Statement of grounds for SMJ
2. Short and plain statement of claim, showing entitled to relief
   - Notice pleading: only need enough detail to put other party on notice; must allege facts supporting plausible claim
   - Must plead w/ detail: fraud, mistake, and special damages
3. Demand for relief sought

Question 26

Complaint - state

Answer 26

FACT PLEADING!

1. Statement of facts constituting the cause of action, stated in ordinary and concise language
   - Fact pleading: must plead “ultimate facts”
   - Must plead w/ detail: fraud, civil conspiracy, tortious breach of K, unfair biz practice, multi-D toxic tort
2. Demand for judgment for the relief to which the pleader claims to be entitled, including amount of damages
   - Exceptions: personal injury and wrongful death, punitive damages; D may request statement describing

Question 27

Complaint - state - fictitious defendants (and relation back)

Answer 27

• Can sue “Doe” and amend w/in 3 years if:
  1. Orig. complaint is timely and has “charging allegations” (CoA) against all Ds, including Does
  2. P genuinely ignorant of Doe’s ID
  3. P’s ignorance must be pleaded in complaint
• On amendment w/ name, can add new causes of action against Doe if same facts, same injuries, same instrumentality

Question 28

Amendment - in general

Answer 28

• As of right: P w/in 21 days of D’s first R12 response and D w/in 21 days of answer (F); before demurrer or hearing on demurrer (C)
• Anytime: w/ leave of court, which is liberally granted if no delay, prejudice, or futility; under FRCP, w/ other party’s consent
• In fed. court, final pretrial conference order supersedes pleadings

Question 29

Amendment - after statute of limitations - new claims against existing D - relation back

Answer 29

Amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading

Question 30

Amendment - after statute of limitations - claims against new D - relation back

Answer 30

Amended pleadings relate back if:
1. Concern same conduct, transaction, or occurrence as original
2. New party knew of case w/in 120 days of filing
3. Also knew that, but for a mistake, it would have been named originally
CCCP has not formal rule, but allows under equitable estoppel type theory

Question 31

Subject matter jurisdiction - federal court - diversity

Answer 31

1. Complete diversity of citizenship
   - Natural persons: based on domicile, established by: [i] presence AND [ii] intent to remain
   - Corporation: based on state of [i] incorporation AND [ii] principal place of business (“nerve center” where managers direct, control, and coordinate)
   - Unincorp. ass’n: citizenship of all members
2. At least $75,000.01 in controversy

Question 32

Subject matter jurisdiction - federal court - diversity - aggregation

Answer 32

• P can state single claim against joint Ds to reach threshold OR aggregate multi claims against single D to reach threshold, even if claims unrelated
• Multiple Ps cannot aggregate separate claims against single D to reach threshold
• Injunctions can satisfy threshold, if harm for which P seeks injunction causes P $75k+ of damage, or if compliance with injunction P seeks would cost D $75k+

Question 33

Subject matter jurisdiction - federal court - diversity - excluded cases

Answer 33

Federal courts will not hear actions involving:

1. Issuance of divorce
2. Alimony or child custody decree
3. Probate of an estate

Question 34

Subject matter jurisdiction - federal court - federal question

Answer 34

Claim must “arise under” federal law; for bar purposes, federal question jurisdiction exists only if P is enforcing a federal right

Question 35

Subject matter jurisdiction - federal court - supplemental

Answer 35

Claim must share a common nucleus of operative fact; for bar, same T/O

1. Diversity cases
   - P can use SJ to reach amount in controversy
   - P cannot use SJ to add non-diverse D
2. Federal question cases
   - P can use SJ to add non-federal claim

Question 36

Subject matter jurisdiction - federal court - supplemental - discretionary limits

Answer 36

(1) the federal question is dismissed early in the proceedings; or
(2) the state law claim is complex, or
(3) state law issues would predominate

Question 37

Subject matter jurisdiction - federal court - removal

Answer 37

• Can remove FQ or diversity case from st. court to fed. court in district embracing st. court.
• All Ds must agree to remove, and cannot do so in diversity case if any D is in-state
• D can waive right to remove by filing counterclaims (permissive probably waives; compulsory probably not)
• Time limits: must remove w/in 30 days after service of first paper that makes case removable; in diversity case: cannot remove more than 1 yr after case filed, P acted in bad faith
• In fed. court, P can move to remand; if removal procedurally improper, P must move w/in 30 days but no time limit on raising lack of SMJ

Question 38

Erie Doctrine

Answer 38

1. If fed. law on point directly conflicts w/ state law, apply fed as long as valid (e.g., Const., USC, FRCP)
2. If no fed. law on point, apply state law if obviously substantive (e.g., claim/defense, SOL and tolling rules, choice of law rules)
3. If no fed. law on point, and state law not obviously substantive, apply state law if three-part test determines it’s substantive:
   - Outcome determinative: if applying or ignoring state rule would affect outcome, use state rule
   - Balance of interests: does either fed. or state have strong interest in applying its rule?
   - Avoid forum shopping: if fed. court ignoring state law will cause parties to flock to fed. court, apply state law

Question 39

Venue - federal - where proper

Answer 39

1. Where all defendants reside
   - If all reside in different dists. of same state, P can lay venue in dist. in which any resides
   - Natural persons reside in one dist. where domiciled.
   - Businesses, regardless of whether incorporated, reside in all dists. where subject to PJ in case
2. Where substantial part of the claim arose
3. If neither #1 or 2 satisfied, where any subject to PJ in case

Question 40

Venue - federal - transfer

Answer 40

1. Court has power transfer case to another fed. court where case could have been filed
   - Proper venue must have PJ over defendant
   - Parties can agree to venue if no PJ
2. If original venue proper, court has discretion to transfer based on convenience for parties and witnesses and the interests of justice
   - Court must weigh factors: public (what law applies, what community should be burdened with jury svc., keeping local controversy in local court) and private (where are witnesses and evidence)
   - Transferee court applies the choice of law rules of original court
3. If original venue improper, court may transfer in the interests of justice or dismiss

Question 41

Venue - federal - forum non conveniens

Answer 41

1. If venue in another judicial system appropriate, court dismisses or stays based on same public and private factors as transfer (public: what law applies, what community should be burdened w/ jury svc., keeping local controversy in local court;
   private: convenience, e.g., where witnesses and evidence are).
2. Requires a very strong showing; FNC dismissal almost never granted if P is resident of present forum
   - Other court must be adequate; need not provide as large recovery as US, but must give P day in court

Question 42

Venue - state - where proper - cases involving land

Answer 42

• Cases for the recovery of land, or determination of an interest in land, or for injury to land are called “local actions.”
• Venue for local actions lies in the county where the land is located
• If case has local and transitory aspects or more than one venue possibility, courts follow the venue rule for the “main relief” (principal object of case)

Question 43

Venue - state - where proper - cases not related to land

Answer 43

1. Cases not related to land are called “transitory actions”
2. Generally, venue lies in a county where any D resides when case filed; if no CA Ds, any county
3. Additional locations: in K cases, county where K entered or to be performed; in personal injury or wrongful death cases, county where injured
4. Case against corp: county where [i] it has principal place of biz; [ii] it entered or is to perform K; or [iii] breach occurred or liability arises
5. Case against unincorp. entity: county where it has PPB if on file w/ sec. of state; otherwise, where any member or partner resides
   - If case has local and transitory aspects or more than one venue possibility, courts follow the venue rule for the “main relief” (principal object of case)

Question 44

Class actions - federal - requirements

Answer 44

You CAN’T sue alone in a class action!

1) Class is so NUMEROUS that joinder of all members is impracticable
2) Questions of law or fact COMMON to the class
3) The claims of the representative parties are TYPICAL of the class
4) The representative parties will fairly and ADEQUATELY protect the interest of the class

Question 45

Class actions - federal - types

Answer 45

1. “Prejudice:” necessary to avoid inconsistent results or harm either to class members or to party opposing class (probably not on bar)
2. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party
3. “Damages:” common questions predominate over individual questions AND class action is the superior method to handle the dispute (most likely on bar)

Question 46

Class actions - federal - court action required to proceed

Answer 46

1. Certification: at “early practicable time” determine if class act. appropriate (interest in indiv. control; extent of lit. elsewhere; desirability and difficulties of joint trial); if so, define class and its issues, claims, and defenses
2. Appoint class counsel who will fairly and adequately represent the interests of class
3. Type 3 damages/common Q class action, give indiv. notice, paid for by rep., informing members of: nature of act, def. of class, claims; opt out right, but bound if don’t; right to sep. appearance thru counsel
   - No opt-out right in Types 1 & 2

Question 47

Class actions - federal - subject matter jurisdiction

Answer 47

1. Diversity
   - Only named rep must be completely diverse w/ more than $75,000 in controversy
2. Federal question

Question 48

Class actions - federal - court action required to settle

Answer 48

• Settlement allowed only with court approval
• In all three types of class actions, court gives notice to class members to get feedback on whether case should be settled or dismissed
• In Type 3 cases, court may give second opportunity to opt out

Question 49

Class actions - federal - Class Action Fairness Act

Answer 49

• Grants federal SMJ if all of following met:
  1. Class has at least 100 members
  2. Any class member (not just rep) is diverse from any D
  3. Aggregated claims of class exceed $5M
• Any D can remove (don’t need all to agree) and no in-state removal bar
• No jurisdiction if primary Ds are states or gov entities against whom court can’t order relief, or if claims are based on fed. securities law or state corp. governance laws
• Complicated provisions ensure local classes (where most class members and primary Ds are citizens of same state) do not stay in federal court; they get dismissed or remanded

Question 50

Class actions - state - requirements

Answer 50

• No separate types; allowed if question is one of common/general interest of many persons or parties are numerous and impracticable to bring all before court; must show:
  1. An ascertainable class
  2. A well-defined community of interest
  a. Common questions predominate
  b. The representative is adequate
  c. The class will result in substantial benefit to the parties and the court

Question 51

Class actions - state - procedures

Answer 51

• Appointment of class counsel not required
• Notice may be given by publication; indiv. notice not required; court decides who bears cost
• Court may allow opt out; class members who do not opt out are bound
• Settlement or dismissal must be approved by court

Question 52

Trial - jury trial rights - federal

Answer 52

• 7th Amend applies only in fed. court; preserves right to jury in “civil actions at law” but not in suits at equity; if trial has both legal and equitable elements, jury decides legal issues and facts first
• Must demand jury in writing w/in 14 days of serving last pleading raising jury triable issue
• In voir dire, unltd strikes for cause; three preemptory, which can’t be on basis of race/sex
• Verdict must be unanimous unless parties agree otherwise

Question 53

Trial - jury trial rights - state

Answer 53

• Right to jury trial for law but not equity; if trial has both legal and equitable issues, jury decides legal issues and facts second, and if damages are merely incidental to equity cause of action, no jury at all (“equity clean up doctrine”)
• Must demand jury w/in 5 days of setting trial date
• In voir dire, unltd strikes for cause; six preemptory, which can’t be on basis of race, color, religion, sex, national origin, sexual orientation, or similar grounds
• Verdict requires 3/4 of jurors

Question 54

Trial - motions - federal

Answer 54

• Judgment as a matter of law (JMOL): granted if reasonable people could not disagree on result; take evidence in favor of non-moving party; can move after other side has been heard at trial (D at end of P’s case and end of trial; P at end of trial)
• Renewed motion for judgment as a matter of law (RJMOL): same standard as JMOL; move w/in 28 days after judgment; allowed ONLY IF already moved for JMOL
• Motion for new trial: granted if prejudicial error; new evidence not obtainable w/ due diligence; prejudicial misconduct of party, 3P juror; judgment against weight of evidence; excessive or inadequate damages; move w/in 28 days of judgment.
• Motion to set aside judgment: granted if clerical error (anytime); mistake or new evidence (r’ble time less than 1 year); judgment void (r’ble time)

Question 55

Trial - motions - state

Answer 55

• Motion for directed verdict: same as JMOL
• Motion for judgment notwithstanding the verdict (JNOV): NOT required to make motion for directed verdict at trial; move w/in 15 days of mailing notice of judgment or 180 days after entry of judgment
• Motion for a new trial: same deadlines as JNOV; same as in fed. court; also granted if damages figures shocks the conscience; if so, consider remittitur (P can take lesser damages set by court or get new trial) and additur (D pays higher damages set by court or get new trial; not allowed in fed court)
• Motion to set aside judgment: granted if mistake, inadvertence, surprise, or excusable neglect; must include affidavit of fault and move w/in 6 mos

Question 56

Trial - voluntary dismissal

Answer 56

• Fed: once w/o prejudice; second time w/ prejudice regardless of where orig suit filed
• CA: court determines if w/ or w/o prejudice

Question 57

Trial - pretrial adjudication

Answer 57

1. Summary judgment: no genuine dispute on a material fact and entitled to judgment as a matter of law; can be partial
   - Fed: move w/in 30 days of close of discovery
   - CA: moving party must file statement of undisp. facts and opposing party indicate disp. facts; move 75 days before hearing, respond 14 days before
2. No grounds for relief
   - Fed: failure to state a claim; Rule 12(b)(6)
   - CA: failure to plead facts constituting a cause of action; move by general demurrer

Question 58

Trial - involuntary dismissal

Answer 58

CA only!

1. Not brought to trial w/in 5 years of filing (exclude time when all proceedings stayed) OR
2. Process not served w/in 3 years after filing (exclude time when a stay affected service)

Question 59

Service of process - federal

Answer 59

• Deliver to D: summons (formal court notice of suit and time for response) AND copy of complaint
• Serve w/in 120 days or dismissed w/o prejudice
• Any nonparty over 18 can serve
• Can serve out of state only if state law allow
• Immune from instate service for fed. civ. case if instate as witness or party in another civil case.
• Means:
  1. Personal service: give to D anywhere
  2. Substituted service: give to someone of suitable age and discretion residing at D’s usual abode
  3. Service on D’s agent
  4. Waiver by mail: mail D copy of complaint and waiver form w/ prepaid means of return; if D mails waiver to P w/in 30 days, D waives formal service
  5. Service in accord w/ state law

Question 60

Service of process - state

Answer 60

• No immunity from instate service for state civ. case if instate as witness/party in another case
  1. Personal service
  2. Substituted service: like fed. but must try personal svc. first; must inform recipient of contents; must mail as well
  3. Service on D’s agent
  4. Service by mail: 20 days to return
  5. Service by publication: only on affidavit from P’s atty that D cannot be served, after demonstrating reasonable diligence to serve D another way
  6. Can serve out of CA in any manner allowed by CA law OR by mail w/ return receipt requested

Question 61

Venue - state - forum non conveniens and transfer

Answer 61

Both allowed; FNC codified

Question 62

Pleadings - frivolous litigation

Answer 62

• FRCP 11 and parallel CA rule impose continuing certification req.:
  1. The paper is not for an improper purpose,
  2. Legal contentions are warranted by law (or nonfrivolous argument for law change), and
  3. Factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)
• Sanctions avail. to deter NOT punish
• Other party can move for sanctions or judge can raise sua sponte
• If other party moves, 21 day safe harbor to fix (CA: have safe harbor even if judge raises)

Question 63

Discovery - tools

Answer 63

1. Depositions: oral or written Qs to party or non-party, to be answered w/ sworn oral responses
   - Nonparty not subpoenaed not compelled
   - Subpoena could be “duces tecum”
   - Can use in place of testimony if deponent 100 (fed) / 150 (CA) miles from court
2. Interrogatories: Q in writing to party, to be answered in writing under oath
3. Requests for admission: to another party to admit truth of any discoverable matters
4. Requests to produce: to party or, under fed. rules, non-party, requesting that it make available for review and copying various docs or things
   - In CA, must rely on subp. DT to nonparty
5. Physical or mental exam: of party or person under party’s control (e.g., child of parent)
   - D has right to demand 1 exam of P in personal injury case
   - Lawyer can attend client’s physical exam or, w/ court order, mental exam

Question 64

Discovery - supplemental

Answer 64

Fed: must supplement discovery responses
CA: no duty as long as the information given was accurate and complete when given; party can propound supplemental interrog. or supplemental demand for inspection

Question 65

Discovery - scope

Answer 65

Fed: anything relevant to claim or defense
CA: anything relevant to subject matter involved in the pending action (broader but prob. not testable)

Question 66

Discovery - initial disclosures

Answer 66

Fed. only!

1. Initial: in most cases, must identify persons and give copies (or description) of docs or ESI likely to have discoverable info that disclosing party may use to support its claims or defenses; computation of damages; insurance for any judgment
2. Expert: as directed by court, must identify experts who may be used at trial, written report w/ opinions, data used, quals., comp., etc.
3. Pretrial: 30 days before trial, must give detailed info. about trial evidence, including docs and ID of witnesses to testify live or by deposition

Question 67

Discovery - protected from discovery - work product

Answer 67

1. Work product and material prepared in anticipation of litigation generally protected
   - Fed: generated by party, rep., or atty
   - CA: generated only by attorney or agent
2. Absolutely protected: mental impressions; opinions; conclusions; legal theories.
3. Otherwise, can discover if substantial need AND not otherwise available

Question 68

Discovery - protected from discovery - in general

Answer 68

1. Cannot discover communications protected by privilege or WP
2. If party withholds discovery or seeks protective order, must claim protection expressly and w/ particularity; prepare privilege log
3. If party inadvertently produced protected material, must notify other party as soon as possible; other party then returns, sequesters, or destroys pending court decision about waiver
4. CA only: constitutional right to privacy additional grounds for w/holding info; court balances need for info against need for privacy

Question 69

Discovery - experts - federal

Answer 69

1. Req’d disclosure; party may take depo. of any expert whose opinions may be presented at trial; draft reports of experts identified in req’d disclosures are WP
2. Consulting expert (retained in anticipation of litigation but will not testify at trial): no discovery absent “exceptional need” (probably means not available elsewhere)

Question 70

Discovery - experts - state

Answer 70

1. No req’d disclosure; any party may request simultaneous exchange of expert witness information and then both parties must exchange list of experts to be called at trial, declare the nature and substance of testimony, and expert’s qualifications.
2. Generally no discovery from consulting experts

Question 71

Discovery - sanctions - process in federal court

Answer 71

1. Partial violation: receiving party answers some and objects to others; if objections not upheld, this is a partial violation
   - Two steps to sanction: motion to compel w/ costs and fees, if violated, sanctions
2. Total violation: receiving party fails completely to attend deposition, respond to req. for production
   - One step to sanction

Question 72

Discovery - sanctions - process in state court

Answer 72

• CA prohibits misuse of discovery, such as not playing by the rules, making unjustified objections, abusive motions, failing to confer, refusal to respond, etc
• Court may sanction any person, including parties and attorneys, guilty of misusing discovery process
• Person to be sanctioned must be given notice and a chance to be heard
• Court starts w/ monetary sanctions before moving on to serious sanctions

Question 73

Discovery - sanctions - types available

Answer 73

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

Question 74

Joinder - necessary parties

Answer 74

• Absentee is necessary if any of:
  1. Without A, court cannot accord complete relief among existing parties (worried about multiple suits)
  2. A’s interest may be harmed if he is not joined (practical harm)
  3. A claims an interest which subjects a party (usually D) to multiple obligations
• Feasible if joining A doesn’t destroy diversity; if not feasible, proceeds w/o A or dismisses case based on : availability of alt. forum; likelihood of harm to A; whether court can shape relief to avoid that potential harm

Question 75

Joinder - intervention

Answer 75

• Intervention of right: A’s interest may be harmed if she is not joined and her interest is not adequately represented now
• Permissive intervention: A’s claim or defense and the pending case have at least one common question (CA: A must have “interest in the matter in litigation, or in the success of either of the parties”); discretionary with court; OK unless delay or prejudice.
• In diversity case, if A is not diverse from the party on the other side, most courts do not allow supplemental jurisdiction

Question 76

Interpleader

Answer 76

• Stakeholder w/ property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency
• Two types of interpleader in federal court: Rule 22 and statutory:
  1. Rule interpleader: regular diversity/FQ rules; regular service and venue rules
  2. Statutory interpleader: one claimant must be diverse from one other claimant (don’t care about stakeholder); amount in controversy only $500; nationwide service (no PJ prob. over US claimants); venue where any claimant resides

Question 77

Default

Answer 77

• Opponent fails to respond
• Normally must go to judge to get default judgment; clerk of court can enter judgment if:
  1. D made no response at all
  2. The claim itself if for a sum certain in money (CA: based on K or judgment)
  3. Claimant gives an affidavit of the sum owed (CA: and all relevant facts)
  4. D not: minor or incompetent (fed) OR served by publication (CA)

Question 78

Appeal - federal

Answer 78

• Generally, final judgment rule
• Interlocutory review available:
  1. By statute if concerns injunctions; receivers; findings of patent infringement; orders affecting possession of property, e.g., attachments.
  2. By discretion if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and CoA agrees to hear it
  3. Under collateral order exception if issue distinct from merits of the case, involves an important legal question, and is essentially unreviewable later
  4. Express entry of judgment concerning one party in multi-party suit
  5. Denial/cert. of class w/in 14 days; does not stay district court proceedings
  6. Extraordinary writ

Question 79

Appeal - state

Answer 79

• Generally, final judgment rule; note that this extends to single party in multi-party suit
• Interlocutory review available:
  1. By statute if concerns grant of motion to quash service of summons; grant of FNC motion; grant of new trial (UNLIKE FED!); denial of JNOV; denial of class cert.; order concerning injunction; order regarding sanctions of over $5,000
  2. Under collateral order rule if issue collateral to the merits of the case; that the trial court has decided finally; that directs payment of money or performance of an act
  3. Extraordinary writ: not really appeal, seeks writ of mandate/prohibition to lower court; must show irreparable harm if writ not issued; normal route of appeal from final judgment is inadequate; and beneficial interest in the outcome of the writ proceeding. ONLY WAY TO SEEK DENIAL OF MOTION TO QUASH