Civil Procedure

Question 1

What is the test for if evidence is discoverable?

Answer 1

If the information sought is relevant to any party’s claim or defense. Inadmissibility does not mean indiscoverable.

Question 2

When can the attorney-work product doctrine be overcome?

Answer 2

When there is a substantial need for the materials and the information cannot be acquired through other means without undue burden.

Question 3

What is spoliation?

Answer 3

The negligent or intentional destruction or significant alteration of evidence required for discovery.

Question 4

When does the duty to preserve evidence begin?

Answer 4

When litigation is reasonably anticipated

Question 5

What does the duty to preserve evidence require?

Answer 5

1. Reasonable measures to preserve the evidence

2. Preventing destruction of evidence, even when destruction would be routine

Question 6

What is the consequence for purposeful spoliation?

Answer 6

(1) A presumption that the destroyed or lost information was unfavorable to the sanctioned party,
(2) A jury instruction that it may or must presume the information was unfavorable to the sanctioned party, OR
(3) An entry of a default judgment against the party

Can also include sanctions!

Question 7

When are sanctions imposed for spoliation?

Answer 7

When there is intent to deprive the other party of the evidence and there is prejudice to the other party

Question 8

When is removal proper?

Answer 8

A defendant in a divil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed, so long as the civil action would fall within the original jurisdiction of a U.S. district court. Think –> SMJ

Question 9

What law will be applied when venue is transferred, but the original venue was proper?

Answer 9

The law of the state of the transferor court, including their choice-of-law rules.

Question 10

What law will be applied when venue is transferred based on a valid forum selection clause?

Answer 10

The transferee court will apply the rules of the state in which it is located, including choice-of-law

Question 11

What are the rules regarding when a forum selection clause applies?

Answer 11

The Supreme Court has held that a forum selection clause should be given controlling weight in all but the most exceptional cases, even if the clause is unenforceable under state law.

The clause will be treated as prima facie valid, to be set aside only on a strong showing that transfer would be unreasonable, unjust, or the clause is invalid for fraud or overreaching.

Question 12

Where is venue proper?

Answer 12

(1) In any district where a defendant resides, if all live in the same state, or (2) where a substantial party of the events or omissions on which the claim is based occurred

Question 13

When can a defendant not remove a case based on diversity?

Answer 13

When the case was originally filed in the state court of the defendant’s home state

Question 14

Define: Issue Preclusion (Collateral Estoppel)

Answer 14

Precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim

Question 15

14-day deadlines

Answer 15

1. File answer after pre-answer motion denied
2. File third-party complaint without leave after original answer served
3. Respond to amended pleading
4. Submit initial discovery plan & initial disclosures after initial conference
5. Demand jury trial after last pleading served

Question 16

21-day deadlines

Answer 16

1. Serve pre-answer motion or answer after service of complaint,
   counterclaim, or crossclaim
2. Amend pleading as matter of course after pleading was served
3. Hold initial conference before scheduling order is due
4. Serve reply to answer

Question 17

28-day deadlines

Answer 17

1. Renew motion for judgment as a matter of law
2. Move for new trial
3. Move to alter or amend judgment
4. Move for amended findings after final judgment
   (covers most posttrial filings)

Question 18

30-day deadlines

Answer 18

1. File notice of removal after receipt of initial pleading
2. Move to remand after notice of removal filed
3. Submit pretrial disclosures before trial
4. Respond to interrogatories, requests for production & requests
   for admission
5. Move for summary judgment after close of discovery
6. File notice of appeal
   (covers most discovery deadlines)

Question 19

60-day deadlines

Answer 19

1. File answer or pre-answer motion after domestic service waived
2. Serve answer after service of process on U.S. agency or
   employee

Question 20

90-day deadlines

Answer 20

1. Serve process after complaint is filed
2. File answer or pre-answer motion after foreign service waived
3. Disclose expert witness materials before trial

Question 21

What are the requirements for representative members of a class to sue or be sued on behalf of all members of the class?

Answer 21

(1) Numerosity —> the class is so numerous that joinder of all members is impracticable
(2) Commonality —> there must be questions of law or fact that are common to the class
(3) Typicality —> The claims or defenses of the representatives must be typical of the class
(4) Adequacy —> The representatives must fairly and adequately protect the interests of the class

Question 22

What is the diversity requirement for a class action totaling more than $5M?

Answer 22

At least one member of the plaintiff class must be diverse with any defendant.

Question 23

When will a choice of law clause not govern?

Answer 23

Typically upheld unless 1) state has an unfair relationship with one party or 2) other state has a materially greater interest

Question 24

In a bench trial, what is the judge required to provide after the close of evidence?

Answer 24

The judge is require to provide the factual finding and legal conclusions on the record (orally or in writing)

Question 25

What is the de novo standard of review?

Answer 25

Where a judge’s conclusion of law will be reversed if the appellate court reasonably believes the judge misinterpreted applicable law.

Question 26

What is the clear error standard of review?

Answer 26

Where a judge’s finding of facts will be reverse only if they were clearly erroneous such that no reasonable judge would have made it