Civil Procedure

Question 1

when are items part of discovery or discoverable

Discovery

Answer 1

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action that is not work product. Information within the scope of discovery need not be admissible in evidence to be discoverable.

A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information.

Question 2

What is the test for discovery?

discuss relevancy.

Answer 2

the test is whether the information sought is relevant to any party claim or defense.

can’t discover things that are made in anticipation of ligation or for trial by its representative.

Question 3

What is spoilation of evidence?

Answer 3

the negligent or intentional destruction or significant alteration of evidence required for discovery. when litigation is reasonably anticipated, even if it has not commeced, potential litigants have a duty to preserve such evidence.

Once a duty to preserve evidence is triggered, the party in possession of the evidence **must take reasonable measures to preserve it. ** If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.

Question 4

When are sanctions authorized for spoilation of evidence.

Answer 4

Only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

may order reterival at the cost of the destroying party.

Question 5

What sanctions can be imposed for destroying discoverable evidence

Answer 5

(i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party;
(ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or
(iii) an entry of a default judgment against the party.

Question 6

Removal

Answer 6

Generally removal allows a defendant to move a case from state court to federal court if the case could have been brought originally in federal court.

Question 7

removal to district court

Answer 7

the defendant in any civil 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 as long as the civil action is within the original jurisdiction of a U.S. district court.

**apply diversity analysis

For the convenience of the parties and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Question 8

Fourm Selection based on selection clauses in a contract

Answer 8

** the clause is accorded respect.** If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as** fraud or overreaching. **

Question 9

Conflict of laws, how is it decided?

Answer 9

if the venue of an action is transferred when the original venue is proper (as discussed above), the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.

when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.

Question 10

Subject-matter jurisdiction

Answer 10

power of a court to hear a certain type of case.
1. federal question- must appear on the face of the complaint
2. diversity jurisdiction- complete diversity betwee p and D AIG must be greater than 75k
3. supplemental jurisdiction- tacking on of state claim that arise out of the same operative facts.
4. statutes confer jurisdiction through federal statutues.

Question 11

personal jurisdiction

Answer 11

power of court to hear paticualr case over a specific person (due process 14th amendment)
General: can be sued for anything (give consent, presence (continuous and systematic) or be present , domicile (intent to stay)

Specific (Suit arises out of contacts with the state) - need minimum contacts.

Question 12

venue

Answer 12

venue is proper;
1) in a district where any defendant resides if all defendants reside in the same state.
2) where substantial part of the events giving rise to claim occured
3) fallback; where venue cannot be established by the other provisions or D is subject to personal jurisdiction.

Question 13

Summary Judgement

Answer 13

The question is whether there is a (no) genuine issue of material fact. It is looked at in the light most favorable to the nonmoving party

• The motion will be denied if the case involves motive, credibility, or if there is conflicting
  testimony.
  -A motion may be supported by affidavits, admissions, depositions, or other admissible
  documents.

Question 14

Service of process

Answer 14

plaintiff serves summons and a cop of complaint within 90 days. can be waived and D gets 90 days to answer if not 21 days. Serve using (SAID for individual) or (SO for businesses)

said= state law, authorized agent, serve individually,home w/ reason age

Question 15

Preliminary injunctions

Answer 15

Equitable relief with the objective of preserving the status quo.
The court must give notice to the adverse party. Granting this relief lies within the discretion of the trial court and if granted, the matter must be tried within six months unless the parties stipulate otherwise or good cause is shown.

Question 16

H.E.L.P

Factors used to decide Preliminary injuctions

Answer 16

1) harm,
2) evaluate the risk if the injunction is not granted,
3) likelihood of prevailing, and
4) public interest.

Question 17

temporary restraining orders (TROs)

Answer 17

May be issued without notice if the facts show there would be immediate or irreparable harm. lasts until the court decides whether to grant a preliminary injunction, not to exceed 14 days unless it is later show that there is good cause to extend it.

attorney must stipulate in writing of any efforts made to give notice and reason why it is required.

Question 18

What is claim perclusion (Res Judicata)

Answer 18

a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action if;
the claimant and the defendant are the same (and in the same roles) in both the original action and the subsequently filed action.

Question 19

Issue Preclusion (collateral estoppel)

Answer 19

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 20

what elements are necessary for issue perclusion

Answer 20

(i) issue precluded must be the same as that involved in the prior action;
(ii) the issue was litigated in the prior action;
(iii) the issue was determined by a valid and binding final judgment; and
(iv) determination of the issue must have been essential to the prior judgment.

trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge should not allow use of offensive collateral estoppel.