Civil Procedure 47-68 Flashcards
A party is permitted to conduct a deposition of any person/party so long as it’s what?
Limited to one day of no more than 7 hours; AND
Proper notice is given.
*A subpoena is NOT required to depose an opposing party.
Priority: Low
During discovery in Federal court, what type of non-privileged information may a party obtain?
Information that is:
Relevant to any party’s claim or defense; AND
Proportional to the needs of the case.
*In California courts, a party may obtain any information that is relevant to the subject matter involved in the pending action.
Priority: HIGH
How may a non-party respond when served with a Subpoena Duces Tecum?
They may respond with a motion to quash or a written objection refusing to produce the documents requested.
If such motion is filed, the burden shifts to the subpoenaing party to establish the need for discovery.
Priority: Low
Discovery in Federal Courts
Under Rule 37(e), when may a party be sanctioned for failing to preserve ESI?
When:
The ESI should have been preserved in anticipation of litigation;
The party failed to take reasonable steps to preserve it; AND
It cannot be restored or replaced through additional discovery.
Priority: N/A
Discovery in Federal Courts
Under Rule 26(g), when signing any discovery document (besides disclosure) what must a party certify?
That it is:
Consistent with the Federal Rules of Civil Procedure and is non-frivolous;
Not being presented for any improper purpose; AND
Not unreasonable, unduly burdensome, or expensive considering the case, issues at stake, and prior discovery.
Priority: N/A
Discovery in Federal Courts
What must be disclosed in the Rule 26(a) Initial Disclosure?
Contact information of individuals likely to have discoverable information and what the info may be;
A copy or description of all documents, ESI, and items a party may use to support its claims or defenses;
Computation of each category of damages claimed by the disclosing party; AND
Any insurance agreements that may be liable to satisfy a possible judgment in the action.
*The disclosures MUST be made within 14 days of the rule 26(f) conference.
Priority: N/A
What does the Attorney Work Product doctrine protect?
All materials prepared by an attorney or his agents in anticipation of or during a litigation. They are protected from disclosure unless:
A substantial need for the materials exist; AND
A substantial equivalent cannot be obtained without undue hardship.
Priority: N/A
Federal Court Conferences
When may a court issue sanctions with respect to Pretrial Conferences?
If a party or attorney:
Fails to appear;
Is substantially unprepared to participate;
Does not participate in good faith; OR
Fails to obey a scheduling or other pretrial order.
Priority: N/A
Motion to Dismiss – Federal Courts
Under Rule 12(b), what is the standard on a Motion to Dismiss?
The court must:
Consider the facts in the light most favorable to the non- moving party; AND
Determine whether there is any basis upon which relief can be granted for the non-moving party.
*The court DOES NOT evaluate the merits of the case.
Priority: Low
Motion to Dismiss – Federal Courts
What are the Motion to Dismiss grounds?
Lack of subject matter jurisdiction;
Lack of personal jurisdiction;
Improper venue;
Insufficient process;
Insufficient service of process;
Failure to state a claim upon which relief can be granted;
Failure to join a necessary party.
*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.
Priority: Low
When will a court grant a Motion for Summary Judgment?
When:
There is no genuine issue of material fact; AND
The movant is entitled to judgment as a matter of law.
When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.
In California: a party must include a Statement of Undisputed Facts in the motion.
Priority: Medium
When will a motion for Judgment as a Matter of Law (JMOL) be granted?
*In CA, it’s called a Motion for Judgment of Nonsuit.
It will be granted if:
The non-moving party has been fully heard on an issue during a jury trial; AND
The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue.
*The court MUST draw all reasonable inferences in the light most favorable to the opposing party.
Priority: Low
In Federal Court, what are the reasons a court may grant a Motion for a New Trial?
An error at trial makes the judgment unfair;
New evidence surfaced that could not have been obtained (with due diligence) at the original trial;
Prejudicial misconduct of a party/attorney/juror/third-party;
The judgment was against the weight of evidence; OR
The verdict was excessive or inadequate.
Priority: N/A
In Federal Court, when will a Default Judgment have a preclusive effect?
When the rendering court has jurisdiction over:
the claims; AND
the parties to the action.
*Court needs both subject matter and personal jurisdiction.
Priority: N/A
Claim Preclusion
What are the elements of Claim Preclusion (a.k.a. res judicata)?
The parties are identical or in privity;
The judgment in the prior action was rendered by a court of competent jurisdiction;
The prior action was concluded by a final judgment on the merits; AND
The same claim was involved in both actions.
In California: claim preclusion may ONLY be used when all appeals are exhausted for the case.
Priority: HIGH
