Civil Procedure Flashcards
Discovery: Mandatory Disclosures (4)– what you get without asking!
Witnesses: The name/contact information of any witness that a party may use to support a claim or defense;
Documents: Copies (or descriptions) of documents, electronically stored information (ESI), and tangible objects that a party may use to support its claim or defense;
Damages: Computation of damages sought and supporting documents; and
Insurance Agreements: Copies of any insurance agreement that may require the insurer to pay.
A party is entitled to demand the discovery of any matter that is:
- Relevant to the claim or defense of any party
- Not unreasonably cumulative or burdensome; and
- Not privileged
Discovery: Expert Disclosure
At least 90 days before trial, if a party is planning to rely on expert testimony, they must disclose the name/contact info of the expert and their final report, which must include the qualifications, opinion, and information relied on by the expert.
Discovery: Pre-trial Disclosures
List of witnesses expected to call at trial;
Witnesses that may be called if the need arises;
List of witnesses whose testimony will be given through deposition or transcript; and
List of documents or physical evidence they expect to present.
Discovery: Scope (Rule 26b)
o Relevance: A party is allowed discovery into any non-privileged matter that is relevant to any claim or defense. Relevant if likely to make any fact in dispute more or less likely to be true, regardless of whether the information would be admissible at trial.
o Work Product. Exception- discoverable in 2 situations:
• Party can always obtain a statement it has made.
• Can get WP if the party has a substantial need and
can’t get it without undue hardship. If the court
orders disclosure for this reason, it must make every
effort to keep secret the author’s litigation strategy
or mental process
o Privilege: Privileged matter is not discoverable.
Attorney/client – Covers confidential
communications between an attorney and client for
the purpose of obtaining or rendering legal advice
o Proportionality:
Even if a party seeks information that is relevant, not work product, and not privileged, the information may still be undiscoverable if the request is not proportional to the needs of the case
o Experts:
Testifying Expert: Opinions held by those testifying are discoverable to a limited extent. Besides mandatory disclosure, a party can also get communications relating to:
• Compensation for the expert’s study or testimony;
• Data provided by an attorney to the expert; or
• Any assumption the attorney asked the expert to make in developing the expert opinion.
Interrogatories
= Questions submitted in writing to the other party.
Up to 25 questions
Can seek facts or contentions
30 days to respond, must be in writing and objections stated with specificity
Requests for Admission
= Request to admit truth or fact.
If admitted, it’s in there for the trial.
30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain the truth but lack information to admit/deny.
• The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury.
Requests for production [of documents, tangible items, or access to evidence.]
30 days to respond, may object as outside the scope of discovery.
If documents, the responding party must provide them as they are maintained in the usual course of business and label them.
If electronically stored information (ESI), can provide in the form it is normally maintained or in a reasonably usable form.
Requests for Mental or Physical Examination
= Used when a party’s mental or physical state is at issue.
Available only upon court order. When ordered, the party must submit to an examination. The examiner must prepare a report detailing the exam and it is available to any requesting party.
Depositions
= Used to ask questions of witnesses.
May depose up to 10 witnesses, but can get a court order for more.
Most depositions occur during the pendency of the lawsuit. Like other forms of discovery, these depositions cannot be conducted until after the 26(f) conference. In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as “depositions to perpetuate testimony” and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions.
May use at a hearing or trial as long as the opposing party had a reasonable opportunity to be present and these rules are followed:
• The deposition of a party/party’s designee can be used for any purpose.
• The deposition of a non-party can be used:
o to impeach the deponent, or
o if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose.
Subpoenas
= Discovery from non-parties.
Two types:
• Subpoenas duces tecum – demand for documents.
• Subpoenas ad testificatum – demand for testimony.
The person served may object as outside the scope of discovery or if it requires the person to travel >100 miles from home or work.
Methods to Enforce Discovery
o If they sort of comply:
Motion to compel: Made after the movant has in good faith attempted to confer with the resistor.
• If granted – the movant gets fees/expenses for the motion unless the non-disclosure was not substantially justified.
• If denied – the non-movant may get fees, but only if the motion was not substantially justified.
Sanctions: (if after a motion to compel, they still don’t comply)
• Court order declaring facts sought are established in favor of the requesting party;
• Court order prohibiting the disobedient party from presenting certain claims or defenses;
• Stay or dismissal of entire action; or
• Order of contempt.
o If they don’t comply at all with a deposition request, the party can immediately seek all sanctions above (except an order of contempt).
Claim preclusion (3 elements)
= Bars claimants from re-litigating a case they already lost.
- Same Parties: Current claim is between the same parties as a prior case;
- Same T/O: Arises out of the same transaction or occurrence underlying the prior suit; and
- Valid Final Judgment on the Merits:
Final judgment = a court order that resolves the entire case in favor of either the plaintiff or the defendant.
Valid = the court had PJ over the defendant.
On the merits = involved an inquiry into the merits of the plaintiff’s claim.
A judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue.
A dismissal with prejudice = on the merits.
Issue Preclusion (4 parts)
= Bars re-litigation of issues even with different parties.
The issue must have been litigated and determined in the prior suit;
The issue must have been essential to the judgment;
• Essential = If decided the opposite way it would
it have changed the result of the case.
The prior suit must have ended in a judgment on the merits; and
The party against whom preclusion is asserted must have had a full and fair opportunity, as well as incentive, to litigate the issue in the first suit.
Renewed Motion for Judgment as a Matter of Law (R-JMOL)
o If a party filed a losing JMOL during trial, and then loses at trial, they can try again.
o The motion must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by the verdict).
o In ruling on this renewed motion for JMOL, the court may:
1. Allow the verdict to stand;
2. Enter the opposite verdict; or
3. Order a new trial (even if a motion for a new trial was not made).
