Civil Procedure II Flashcards
THE LITIGATION TIMELINE: PLEADINGS
o P files a complaint Complaint contains allegations of jurisdiction showing pleader’s right to relief (claim) and demand for relief sought (Rule 8a) + Venue o D may file a Rule 12 motion seeking to dismiss the complaint or strike it or ask to transfer If rule 12 motion denied, the D files an answer (rule 8b) o If mistakes are made in pleadings, you can amend (rule 15)
JOINDER II – COMPLEX PARTY JOINDER
Who is in a lawsuit o Permissive parties (rule 20) o Compulsory/Necessary Parties (rule 19) o Third Party Parties (rule 14)
Rule 21 – Misjoinder
o Misjoinder is not grounds for dismissal, rather on party motion or sua sponte, court may order add/drop party or sever claim (for separate action or trial) at any time o Forgiving rule for joinder mistakes
Rule 22 – Interpleader (Rule)
o Allows suit of all persons claiming an interest in the matter of the suit o Neutral stakeholder can bring competing claimants together to contest right to money o Purpose is to promote both efficiency and function of the adversary system
Statutory Interpleader : 28 USC 1335
a) district court shall have original jur. In any civil action of interpleader filed by an individual possessing money or property of $500 or more and b) such an action may be entertained although conflicting claimant’s claims do not have a common origin (minimal diversity – one D different from one P)
Rule 24 – Intervention
o Gives nonparties the opportunity to intervene in the cases if they wished
FRCP 24(a) Intervention of Right
Statutory OR Court must permit anyone who: (1) claims interest in property or transaction subject of suit and (2) the action as a practical matter may impair or impede ability to protect interest
FRCP 24 (b) Permissive Intervention
Statutory right OR The court may permit anyone to intervene who: Claims/defense shares a common question of law or fact and there is no prejudice to existing parties
GRUTTER V. BOLLINGER RULE
FRCP 24 – proposed intervenors must establish four elements to be entitled to intervene as a matter of right 1) That the motion to intervene was timely 2) That they have a substantial legal interest in the subject matter of the case 3) That their ability to protect their interest may be impaired in the absence of the intervention and 4) That the parties already before the court may not adequately represent their interest
GRUTTER V. BOLLINGER APPLICATION
Holding/Reasoning: The proposed intervenors have enunciated a specific interest in the subject matter of this case, namely their interest in gaining admission to the University, which is considerably more direct than in prior cases (Miller). Holding for Plaintiff. • The supreme court has held that the proposed intervenors burden in showing inadequacy is minimal. The proposed intervenors need show only that there is a potential for inadequate representation. The intervenors in this case have presented legitimate and reasonable concerns about whether the University will present particular defenses of the contested race conscious admissions policies. We find persuasive their argument that the school is unlikely to present evidence of past discriminations by the school itself. The African American and Latino students/ hopeful students are able to intervene because the University of Michigan’s admission policy has racial discrepancies that creates a substantial legal interest (for the students) in the suit, this is because the outcome of the suit could lead to an overall decline in the admittance of Black and Latino students.
MARTIN V WILKES RULE
One is not bound by judgement in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. -Making a collateral attack (suing a second time attacking a previous judgment) can only be done when one does not have jurisdiction in the action.
MARTIN V WILKES APPLICATION
Under ordinary application of the federal rules of civil procedure a party seeking a judgement binding on another cannot obligate that person to intervene, he must be joined. Rule 24 governing intervention is cast in permissive terms. Rule 19 (a) provides for mandatory joinder in specific circumstances not met here. Joinder as a party rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to jurisdiction of the court and bound by a judgement or decree • It is a principle of general application in Anglo American jurisprudence that on is not bound by a judgement in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. Affirmed. Holding for Plaintiff. The white firefighters could not intervene because they claim they were being denied and passed up for promotions to black firefighters based on a previous consent decree, because their attempt to intervene was untimely (the consent decrees were a part of previous litigation to which the white firefighters were not parties in) • Dissent was concerned that this decision might encourage people to sit and wait to see what happens, rather than being efficient
Rule 25 – Substitution of Parties
o Used to change an existing party for a new party due to death, incompetence, transfer of interest or public official changes o May permit continuation of litigation and substitution of new proper pay
Rule 42 – Consolidation
o Court can multiple cases involving the same issue, this is appellate consolidation At the trial level, a judge can consolidate a case during discovery when there are multiple Ps in a suit (so there is only one set of witness testimony, documents readings, etc) An entire case can be consolidated or smaller parts can be consolidated o FLEXIBLE rule based on equity practice o Requirements are not as difficult to demonstrate as joinder o Each action keeps separate status/ character o Only needs Common question of law or fact
CLASS ACTIONS
• FRCP 23 – (a) Prerequisites. One or more members of the class may sue or be sued as a representative party on behalf of all members if • The class is so numerous that joinder of all members is impractical (NUMEROSITY) • There are questions of law or fact common to the class (COMMONALITY) • The claims or defenses of the representative parties are typical of the claims or defenses of the class (TYPICALITY) • The representatives parties will fairly and adequately protect the interest of the class (ADEQUATE REPRESENTATION) • Suit affecting rights of those not present and/or named in the suit • A named class representative sues on behalf of the class members • The lawyers who represent the class is the class council • Class Action is useful if joinder is difficult or expensive
When to Use Class Action
• Potential Ps or Ds are so numerous that joinder is difficult or expensive • You cannot name the members of the group you would like to represent • Individual monetary claims are not worth much alone but in aggregate represent a substantial potential • You may seek equitable relief for or against many
FRCP 23 Class Actions Require
• A clear definition of the class • Must meet all FRCP 23(a) requirements (N,C,T,A) • Must meet one of FRCP 23(b) requirements, which outline the 3 basic types of federal class actions
FRCP 23(b) 3 Basic Types: 23(b)(1): Separate actions will be risky
• risk of inconsistent judgments OR • individual adjudication will dispose of/impair interests of others that are not parties Ex: D is at risk for being subject to multiple claims 23(b)(1)(b): Class members could miss out from getting relief, its RISKY to do separate litigations because of finite resources
FRCP 23(b) 3 Basic Types: 23(b)(2): Same Equitable Relief
• Actions of opposing party apply generally to the class so the same eq. relief is appropriate • D has acted the same against all Ps • Includes anything that is not monetary damages
FRCP 23(b) 3 Basic Types: 23(b)(3): Common Question Predominates
• Common Q’s predominate and class action is best method to resolve dispute • Individual damages require this class • Most Common Method
How to Create a Class
• Identify the class and class claims in the pleading • The court decided whether to certify o They consider rule 23 requirements • If class not certified, no class claims allowed, only individual • Certified class requires notice Rule 23(c)(2) o 23(b)(3) class requires “best notice” practicable and opt out (R23(c)(2)(
HALEY V MEDTRONIC RULE
Class actions have two primary purposes: (1) to accomplish judicial economy by avoiding multiple suits, and (2) to protest the rights of persons who might not be able to present claims on an individual basis. • As the party seeking class certification, the burden is on P to establish a prima facie case showing each of the prerequisites of rule 23(b) of the FRCP and to establish an appropriate ground for class action under 23(b) – Numerosity, Commonality, Typicality, and Adequacy of Representation o In assessing whether the numerosity standard is met, the court will consider the following scenarios, The geographical diversity of class members, the ability of individual claimants to institute separate suits, and whether injunctive or declaratory relief is sought o To justify class action treatment, there must be some issue involved common to the class as a whole, and relief must turn on questions of law applicable in the same manner to each member of the class o To see if typicality exists, the court does not need to find that the claims of the purported class representatives are identical to the claims of the other class members. In other words, a claim is typical if it (1) arises from the same event or practice or course of conduct that gives rise to the claims of other class members and (2) is based on the same legal theory as their claims o Adequacy of Representation exists if (1) the attorney representing the class is qualified and competent and (2) the class representatives do not have interests antagonistic to the remainder of the class. To see if named P will adequately represent the class. The court focuses on whether the representative’s individual interests are the same or similar to those of the other class members, i.e much like typicality o Rule 23(b)(3) – whet6her common issues predominate over individual issues and the question of whether a class action would be superior are interconnected inquires the court follows the traditional approach of addressing these issues independently o 1. Predominates – In order to determine if common issues of fact and law predominate, the court will have to decide whether there are so many questions common to all of the Ps that having class action treatment would be far more efficient than having a number of separate trials o 2. Superiority of class action treatment – In determining whether a clas action is superior, courts will consider 4 factors under Rule 23(b)(3) (1) whether each class member has suffered sizeable damages or has an emotional stake in the litigation (2) the amount of cases with the same basic theories of liability (3) Because P’s and evidence are all across the country, Ps have failed to establish any particular reason why it would be efficient for the court to hear such a massive class suit and (4) the manageability issues
HALEY V MEDTRONIC APPLICATION
• It seems clear that the numerosity standard is met here. Approximately 66,166 of the defective leads have been implanted and over 43,000 of these leads are still active. Moreover, these leads have been implanted across the U.S. such that potential Ps are spread out and are not in one confined geographical area • For commonality, in this case, the underlying defect in the leads is all related to the same defective material in the leads, regardless of the particular individual in whom the lead is implanted. Also, in mass torts where a single product is involved, the requirement of commonality is satisfied by a showing of a common question of D’s conduct with regard to liability. In this case, D’s representations and misrepresentations to the FDA and to the public are all the same, there is clearly an issue of commonality • For typicality, in this case D’s course of conduct with respect to the various Ps, i.e its design, manufacture, and sale of the defective leads, was exactly the same. In addition, P’s claim is also based on the same basic legal theory as the other class members, thus P’s claim is typical • In this case, P’s adequate representation of the class is also guaranteed by the fact that the P’s interest is clearly large enough i.e, she has enough at stake, to ensure a vigorous prosecution of the action. Further, the named P here is not subject to any unique defenses not assertible against the other class members • It seems particularly unwise for the court to certify a class action where fraud is one of the principle claims set forth by Ps because proving fraud requires Ps to show that the misrepresentations to each class member were the same or substantially similar, this impliedly would require the court to hear from every single P and physician as to the representations they individually relied upon. It seems clear that the primary goal of Ps is in fact monetary damages as a result, certifying a class under rule 23(b) where the declaratory relief sought is secondary to larger claims for monetary damages would be contrary to the purposes of Rule 23(b), thus, at this time it seems wise for the court to deny the class certification here also
Personal Jurisdiction in Class Action: PHILLIPS PETROLEUM V SHUTTS RULE:
In most class actions, an absent P is provided at least with an opportunity to opt out of the class, and is he takes advantage of that opportunity he is removed from the litigation entirely. Because states place fewer burdens upon absent class members than they do upon absent d’s in non-class suits, the Due Process clause need not and does not afford the former as much protection from state court jurisdiction as it does the latter
PHILLIPS PETROLEUM V SHUTTS APPLICATION
In this case, we hold that a forum state may exercise jurisdiction over the claim of an absent class action P, even though that P may not possess the minimum contacts with the forum which would support personal jurisdiction over a D. The P must receive notice plus an opportunity to be heard and to participate in the litigation. The notice must be practicable and reasonably calculated under the circumstances Additionally, due process requires at a minimum that an absent P be provided with an opportunity to remove himself from the class We hold that the protection afforded the P class members by the Kansas statute satisfies the Due Process Clause. The interests of the absent Ps are sufficiently protected by the forum state when those Ps are provided with a requests for exclusion that can be returned within a reasonable time to the court
Class Actions Walmart v Dukes Rule
The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. Rule 23(a) ensures that the named Ps are appropriate representatives of the class whose claims they wish to litigate. four requirements are Numerosity, Commonality, Typicality, and Adequate Representation.
Class Actions Walmart v Dukes Application
The crux of this case is commonality, the rule requiring a P to show that there are questions of law or fact common to the class. Commonality requires the P to demonstrate that the class members have suffered the same injury. The class’s claims must depend upon a common contention, for example all of the female walmart employees must have been subject to a discriminatory bias by the same supervisor A class cannot be certified on the premise that Walmart will not be entitled to litigate its statutory defense to individual claims. And because the necessity of that litigation will prevent backpay from being incidental to the classwide injunction, respondents’ class cannot be certified even assuming that the incidental monetary relief can be awarded to a 23(b)(2) class.
Rule 12 Motions
Rule 12 describes 3 motions that D can file in lieu of an answer 1. A motion to dismiss 2. A motion to strike a more definite statement of the complaint (R 12(b)) • Lists 7 defenses that can be the basis for a motion to dismiss • Raise these defenses by making a motion or by pleading the defenses in the answer • Only procedural defenses are relevant 3. A motion to strike redundant immaterial or scandalous matter (R 12 (c)) • Rule 12b motion to dismiss is decided on the complaint (considers sufficiency of complaint against Rule 8 standards set and Twombly/Iqbal plausibility) • Dismissal under Iqbal: 1. Courts may ignore legal conclusions (unless sufficient facts are pled to support them) 2. Courts assume truth of well-pled factual allegations and applies judicial experience and common sense to determine if pleader stated plausible claim for relief o Must plead facts more consistent with liability than nonliability o Requires more than possibility
Dismissal under Twombly/Iqbal
• Rule 12b motion to dismiss is decided on the complaint (considers sufficiency of complaint against Rule 8 standards set and Twombly/Iqbal plausibility) • Dismissal under Iqbal: 1. Courts may ignore legal conclusions (unless sufficient facts are pled to support them) 2. Courts assume truth of well-pled factual allegations and applies judicial experience and common sense to determine if pleader stated plausible claim for relief o Must plead facts more consistent with liability than nonliability o Requires more than possibility
BETTS V SHEARMAN RULE:
• FRCP12(b)(6) de novo and, in doing so, we “view the pleadings in the light most favorable to, and draw all reasonable inference in favor of, the non-moving party • Factual allegations must “state a claim for relief that is plausible on its face,” which requires pleading facts that “permit the court to infer more than the mere possibility of misconduct.”
BETTS V SHEARMAN APPLICATION
We hold that the district court neither erred in granting defendants’ motions to dismiss nor abused its discretion in denying Betts leave to replead. Affirmed. Holding for Defendants • No changes to the complaint would undermine the existence of arguable probable cause for Officers Rodriguez and Doe to arrest Betts. Additionally, Betts has identified no facts that, if alleged, would bolster his allegations that the officers coached Shearman to make false accusations. Likewise, Betts has identified no facts that would sufficiently allege that Shearman should be treated • The original accusation without the possibility of any police complicity was sufficient to sustain the arrest, thereby undermining the claim that it was the police whose false accusation denied Betts a fair trial. Moreover, it is not plausible that, without more, a complaining witness who had originally conceived of false accusations on her own accord also required “coaching” in making substantially the same accusations again. • Betts’ version of events did not suggest that officers did not have probable cause to arrest him (therefore no factual plausibility) • No legal plausibility for claims against the wife Betts will not survive a motion of summary judgment in the case against his wife in which she called the police and falsely accused him of assaulting her, because his story of police having no probable cause to arrest had no factual plausibility and there was no legal plausibility in his complaint for the claims against his wife
Rule 55 – Default Judgment
• Judgment against D based on failure to respond when obliged to do so o Typically entered for failure to file Answer if obligated to do so o Technically fault rather than judgment on the merits • Must be entered by clerk • P may seek default jud. On entry of default • If claim is for a sum certain (debt, liquidated damages, etc.) clerk can enter judgment for amount and costs • For other claims, party applies to court for def. jud. On liability. Damages may be assessed or contested later
Rule 41 – Voluntary Dismissal
• A nonsuit (dismiss w/o prejudice) ONCE • May be done for many reasons o P thinks suit cannot be won on the facts or law (or not at this time) and does not want to risk further costs o P and D settle the case • Procedure: o File notice pre Answer or by agreement of parties o Must seek court permission after Answer if D does not stipulate to a voluntary dismissal
Rule 41 (b) – Involuntary Dismissal
Converse of a default judgment • Dismisses Ps case over his/her objection for failure to fulfill an obligation of the litigation process (in FRCP, court order, etc.) • Usually occurs only after repeated and extreme delays or obstructive behavior by P during litigation
Rule 68 – Offer of Judgment
Party D may offer in writing to agree to judgment on specified terms • If P accepts, in writing, within 14 days, may file offer and acceptance and clerk enters judgment based on terms of the offer • If P rejects, cost consequences to P o Unaccepted offer admissible in court proceeding o If eventual judgment is not more favorable than rejected offer, P must pay D’s costs incurred after the offer was made
DISCOVERY
The information parties can obtain and the techniques by which the parties can obtain it • Discovery is the required exchange or production of information, documents, evidence relevant to a pending case • Purpose: to enable parties to resolve disputes on the merits • Discovery supports the adversary system and due process by allowing parties to determine and present their best available evidence and it provides notice of evidence that opponents will offer, and permits a party to expose false or misleading evidence which would otherwise be surprising at trial
3 Critical Discovery Issues:
- Method: what specific devices are available to obtain info. 2. Scope: what type of info. can and cannot be obtained 3. Enforcement: what happens if persons refuse to provide requested info. or ask for info. they are not entitled to
FRCP Discovery rules
FRCP 30 and 31: depositions (oral and written) FRCP 33: Interrogatories FRCP 34: Production of documents and things FRCP 35: Physical examinations FRCP 45: non-party subpoenas FRCP 26(a) required disclosures
Scope of FRCP Discovery
• Discovery can produce highly litigated and very expensive disputes • If discovery obligations are not met, parties or attorneys may be subject to costs/sanctions separate from the underlying action
Rule 26: The Discovery Key Discovery conference 26(f)
attorneys must first confer in good faith about whether settlement possible, making initial disclosures, preserving discoverable info., and developing a discovery plan o No discovery before conference
Scope of discovery 26(b)
parties may obtain discovery regarding any o NON PRIVLEGED MATTER o RELEVANT TO ANY PARTY’S CLAIM OR DEFENSE AND o PROPORTIONAL TO THE NEEDS OF THE CASE (proportionality = costs/benefit balancing analysis PROPORTIONLITY FACTORS • Importance of the issues at stake • Parties relative access to relevant info. • Importance of discovery in resolving the issues • The amount in controversy (cost) • Parties’ resources (cost) • Whether the burden or expense of the proposed discovery outweighs is likely the benefit
Required disclosures 26(a)
required disclosures MUST be automatically made without request unless proceeding is exempt or otherwise ordered 1) initial disclosures 2) expert testimony if used 3) pre-trial disclosures
26(a)(1) Evidence you “may” use
Persons likely to have discoverable info. you may use to support claims or defenses (name and contact info. unless discoverable info. relates solely to impeachment Documents and things in your possession you may use to support claims/defenses Categories of damages claimed (ID and compute categories of damages and evidence on which computation is based Any relevant insurance agreement
26(a)(2) Expert disclosures
Identity of expert may use at trial Written expert report (usually mid to late in discovery period) with all expert opinion to be offered, basic and reasons for the opinion, data/info. considered, exhibits to be used, witness qualifications as expert, list of other cases testified as expert, and compensation to be paid
26(a)(3): Pretrial Disclosures
What must be disclosed: witnesses (name and contact info for both may call and will call witnesses) Witnesses to testify via deposition Document or exhibits you will offer at trial (ID each by bates number) • Basic discovery limitations • Discovery Timing 26(d) • And other generally applicable rules to all discovery procedures
ESI – Electronically stored info. limits 26(b)(2)(b)
• Parties need not to provide discovery of ESI if not reasonably accessible due to undue burden or cost o Party withholding has burden to show ESI not reasonable accessible o Court may still order discovery if requester shows good cause, within general limits, and court may require cost sharing
Spoliation
• Destruction, alteration, or loss of evidence = spoliation (spoiled) • Duty to preserve evidence BEFORE discovery if litigation is anticipated • Not a smart move b/c legal and ethical ruled prohibit it and its usually unsuccessful b/c there is always another way to get evidence
Discovery Limitations 26(b)(2)(c
• Discovery may be limited if: o Unreasonable and cumulative/duplicative o More easily obtained from other source that is less burdensome or expensive o Party seeking has had ample opportunity to discover already
Depositions
• R30 – oral • R31 – written • Used to clarify document. gather unrehearsed testimony. And test witnesses Limits: must seek court permission if more than 10 depos and not agreed to by parties
DAVIS V PRECOAT METALS RULE
• Federal Rule of Civil Procedure 26(b)(1) permits discovery into “any matter, not privileged, that is relevant to the claim or defense of any party.” Discoverable information is not limited to that which would be admissible at trial. Information is relevant for purposes of Rule 26 “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). However, a plaintiff is not necessarily entitled to all discovery that is relevant under Rule 26. A court can limit discovery if it determines, among other things, that the discovery is unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2).
DAVIS V PRECOAT METALS APPLICATION
• The plaintiffs’ motion seeks the following two categories of information: (1) discrimination complaints made against the defendant by non-clerical/non-administrative employees who worked at the same plant as the plaintiffs (i.e., the Chicago plant); and (2) personnel and disciplinary files of non-clerical/non-administrative employees who worked at the Chicago plant, the plaintiffs have limited their requests to: (i) the 1998–to–February 2002 time period; (ii) complaints by employees who worked at the same Chicago plant where the plaintiffs worked; and (iii) complaints of race and national origin discrimination–the same types of discrimination alleged in the plaintiffs’ complaint • The plaintiffs claim that the defendant discriminated against them (i) when they were hired by assigning them to lower-paying entry-level positions, (ii) during their employment by enforcing disciplinary rules in a discriminatory manner, by passing them over for promotions in favor of less-qualified white employees, and by retaliating against them for filing complaints of discrimination; and (iii) at the end of their employment by terminating at least one plaintiff based on her race and by including a term in the severance agreement that disadvantaged minority employee • Accordingly, the Court orders the defendant to produce the personnel and disciplinary files of all non-clerical/non-administrative employees who worked at the defendant’s Chicago plant between January 1, 1998 FOR EDUCATIONAL USE ONLY Page 4 Not Reported in F.Supp.2d, 2002 WL 1759828 (N.D.Ill.) (Cite as: 2002 WL 1759828 (N.D.Ill.)) © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. and February 28, 2002. However, the defendant may redact or remove the following information: unlisted addresses and telephone numbers, social security numbers, marital status, medical and health insurance information, criminal history, and credit information
Ecuador v. Hinchee Rule
District courts are entitled to broad discretion in managing pretrial discovery matters, including when ruling on the applicability of the work product doctrine. Rule 26(b)(1) entitles the Republic to all relevant, non-privileged information
Ecuador v. Hinchee Application
• Because Chevron relied on Hinchee’s expert reports both in the Lago litigation and in the treaty arbitration, the Republic contended that Dr. Hinchee and his documents were relevant to the Treat arbitration, there is no dispute that Dr. Hinchee’s notes and email communications with non-attorneys, including other experts are relevant so these documents are discoverable unless Chevron and Hinchee can meet the burden of establishing that a privilege or the work product doctrine exempts these documents from discovery • It is undisputed that the documents at issue were prepared in anticipation of litigation or for trial, and that Hinchee and his colleagues prepared these documents as part of their work for Chevron. • Rule 26 (b)(3)(A) mentions a party or its representative including an attorney, consultant, surety, indemnitor, insurer, or agent, the word expert is noticeably absent. This silence speaks volumes • To the extent any attorney core opinion work product is embedded in the 1200 documents at issue here, they may be redacted, subject to providing a privilege log under rule 26 (b)(5) and submitting the documents for in camera review if requested by the Republic or ordered by the court. Any redaction beyond attorney core opinion work product is not allowed
Examinations R35
• Used to determine physical or mental health of party • Limits: requires court permission
Requests to admit R36
• Used to narrow issues in case (can be issues of fact or law), remove matters from dispute, and avoid issues of proof • Limits: None • If not responded to in 30 Days, deemed admitted
Subpoenas R45
• Used to compel discovery from Non party : production of documents and things AND deposition testimony • Deponent may move to quash for good cause
Privilege in Discovery
• Matter protected by legal privilege is not discoverable under 26(b)(1) • Two types of privilege: (1) absolute privilege (complete privilege from production e.g attorney-client, 5th amendment (steffan v cheney) • (2) Conditional Privilege (privileged under most circumstances – trial preparation r 26(b)(3).
HICKMAN V TAYLOR RULE
FRCP rules 26-37 restrict the pleadings to the task of general notice giving and invest the deposition-discovery process with a vital role in trial preparation • FRCP 26 (b): Limitations inevitable arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry
HICKMAN V TAYLOR APPLICATION
When Rule 26 and the other discovery rules were adopted, this court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries, and we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. Holding for P. Affirmed. • Petitioner emphasizes the FRCP dep.-dis. Rules were designed to enable parties to discover the true factors and to compel their disclosure, wherever they may be found. And since the materials here were secured by Fortenbaugh from third persons rather than from his clients the materials are proper subjects for discovery under FRCP 26. Also that prohibiting discovery would give a corporate D a tremendous advantage in a suit by an individual P. • Court states, discovery is not a one way proposition. It is available in all types of cases at the behest of any party, individual or corporate, P or D. • The memoranda, statements, and mental impressions in issue fall outside the scope of the attorney client privilege and hence are not protected from discovery • Petitioner has sought discovery as of right of oral and written statements of witnesses but makes no suggestion that the tug owners were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses. • Forcing an attorney to repeat or rewrite all that witnesses has told him and to deliver that account to the adversary gives rise to grave dangers of inaccuracy and untrustworthiness • We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice
HICKMAN V TAYLOR APPLICATION
When Rule 26 and the other discovery rules were adopted, this court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries, and we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. Holding for P. Affirmed. • Petitioner emphasizes the FRCP dep.-dis. Rules were designed to enable parties to discover the true factors and to compel their disclosure, wherever they may be found. And since the materials here were secured by Fortenbaugh from third persons rather than from his clients the materials are proper subjects for discovery under FRCP 26. Also that prohibiting discovery would give a corporate D a tremendous advantage in a suit by an individual P. • Court states, discovery is not a one way proposition. It is available in all types of cases at the behest of any party, individual or corporate, P or D. • The memoranda, statements, and mental impressions in issue fall outside the scope of the attorney client privilege and hence are not protected from discovery • Petitioner has sought discovery as of right of oral and written statements of witnesses but makes no suggestion that the tug owners were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to examine the public testimony of the witnesses. • Forcing an attorney to repeat or rewrite all that witnesses has told him and to deliver that account to the adversary gives rise to grave dangers of inaccuracy and untrustworthiness • We are thus dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of Fortenbaugh without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice
Trial Preparation R26(b)(3
based on Hickman v Taylor • Documents/things “prepared in anticipation of litigation” = trial prep. • Trial prep materials not discoverable unless requester shows all 3 o Otherwise discoverable o Substantial need o Undue hardship to obtain elsewhere • If disclosure ordered, court must protect against disclosing mental impressions, conclusions, and legal theories of attorney
Privilege Log R26 (b)(5)
• If party withholds responsive discoverable material, claiming protection by any legally recognized privilege, party must nevertheless produce list/log of all responsive withheld material o Describing nature of document or thing withheld and o Expressly identifying claimed privilege for that document
Motion to Compel
Party may move the court to compel discovery: • If discovery not responded to or responded to improperly • Only after good faith attempt to resolve the dispute • May obtain costs of motion if granted or other sanctions under FRCP 37 (b)(c) or (d)
Protective Orders R26 Limitations on Discovery
• Protective order can limit evidence produced, how it is produced, who may see it, or use to which it is put • Party from whom discovery sought may move for protective order limiting discover for good cause if: o Annoyance, embarrassment, oppression o Undue burden/cost o Release of trade secret or confidential research or business information
When will Cause for Protective Order Exist
• Pretrial material (as trial) presumptively public • Party seeking protection bears burden to show good cause o Balancing test of public and private interests re: non-disclosure to public o Must show specific harm or prejudice to result from disclosure o Court may consider factors in 26(c) to decide if protective order necessary Court has broad discretion here 26(c) factors are not limited
SUMMARY JUDGMENT
• Most frequent motion in federal practice Either party can move R56 or court 56(f) May decide all issues or only some o Purpose: to avoid trial where unnecessary due to lack of factual dispute or inability to establish evidence for a necessary element of a party’s case
Rule 56 Legal Standard
To obtain SJ, movant must show: (1) no genuine dispute as to any material fact (2) movant is entitled to judgment as a matter of law 56(a) o Opponent must demonstrate real (actual) material (relevant to elements of claim) Factual dispute to overcome SJ and get to trial o Language and standard under rule 50(a) is identical to evidentiary evidence in 56(a) o A jury is not needed when there is no disagreement o CELOTEX case sets out the meaning of Rule 56 and Anderson, Harris, and cases are examples of how they can be used in practice
ANDERSON V LIBERTY LOBBY APPLICATION
Where the 1st amendment mandates a clear and convincing standard, the trial judge in dispensing of a directed verdict motion should consider whether a reasonable factfinder could conclude, for example, that the P had shown actual malice with convincing clarity • Our holding that the clear and convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury • The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor • A Court ruling on a motion for summary judgment must be guided by the New York Times clear and convincing evidentiary standard in determining whether a genuine issue of actual malice exists, that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Because the court of appeals did not apply the correct standard in reviewing the District Court’s grant of summary judgment, we vacate its decision and remand the case for further proceedings consistent with the opinion.
Celotex Corp. v Catrett
A Celotex motion happens when the party who doesn’t have the burden of proof at trial moves for SJ based on the fact that they are attacking the party’s, with the burden of proof, pirma facie case, they are attacking one of the elements of the party who has the burden of proof case
Celotex Corp. v Catrett Rule
Under FCRP 56, summary judgment is proper if the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. • Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial • The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden
Celotex Corp. v Catrett Application
One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish that purpose • We find no express or implied requirement in rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim • The federal rules as a whole are designed to secure the just, speedy, and inexpensive determination of every action • Rule 56 must be construed with due regard, not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis. The judgment of the court of appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion
Scott v Harris Rule
Courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. Thus usually means adopting the Ps version of the facts.
Scott v Harris Application
The video tape shows respondent’s vehicle racing down two lane roads in the dead of night at shockingly fast speeds. We see it swerve around more than a dozen other cars, cross the double lines, and force traveling cars to the side of the road. We see it run multiple red lights and travel in the center lane chased by numerous police cars forced to engage in the same hazardous maneuvers to keep up • Respondent’s version of events was so utterly discredited by the record that no reasonable jury could have believed him. The court of appeals should not have relied on such visible fiction, it should have viewed the facts in the light depicted by the video • Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the 4th amendment. The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Reversed. Holding for D
Williams v KFC Rule
To avoid summary judgment, Williams was not required to adduce the most reasonable explanation for the accident, nor was she required to eliminate all other possible causes for her fall. She was only obligated to establish a reasonable probability that the accident was caused by KFC’s negligence
Williams v KFC Application
None of Williams’ excuses were contested, and her motion, without opposition, was granted • The issue of special use is waived here. The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property. KFC’s use of the sidewalk was not special, it was entirely routine use • For summary judgment purposes, Williams presented sufficient circumstantial evidence to render the probability that someone other than KFC was responsible for the grease sufficiently remote or technical in comparison to her explanation • The grease on her clothing, the statement by the police officer, the statements of the private investigator all point to grease being on the sidewalk. Additionally, the testimony of the KFC employee points to KFC being responsible for the existence of grease on the sidewalk • We conclude that Williams carried her burden of establishing that a reasonable factfinder could conclude that KFC was responsible for the grease on the sidewalk and that summary judgment was not warranted on the basis of the facts before the district court. Reversed. Holding for P.
Bias v Advantage International Rule
Rule 56 (c) of FRCP provides for sum. Judg. Where the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law • Once the moving party has carried its burden, the responsibility then shifts to the nonmoving party to show that there is, in fact, a genuine issue of material fact o The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial
Bias v Advantage International Application
For the insurance issue: There is no genuine issue of fact regarding Bias’ status as a cocaine user because of the testimony of his former teammates and the Estate’s generalized evidence that Bias was not a drug user did not contradict the more specific testimony of the teammates. The estate provided passed drug tests, but these only show that Bias did not use drugs in the periods the tests were administered. • Bias would not have been insured anyways because insurance inquire about drug use before issuing a policy, and if Bias would have lied that misrepresentation would have rendered any policy void. • The Estate argued that not all insurance companies ask about drug use before issuing a policy, but did not offer any evidence that a company such as this existed at the time • For the Reebok contract, neither the language of the representation agreement between Bias and Advantage, nor any other evidence could support a finding that the Ds breached any duty to Bias by failing to push to obtain a signed contract on June 18, 1986 • Even if Ds were under some duty to try to sign a contract as quickly as possible, the Estate has offered no evidence to rebut the Ds’ showing that an endorsement contract cannot be negotiated, drafted, and signed in a single day • We affirm the order of the District court’s granting to the Ds sum. Judg, with respect to the estate claims, and we do not address the district court’s order with respect to the D’s counterclaim
Bias v Advantage International Application
For the insurance issue: There is no genuine issue of fact regarding Bias’ status as a cocaine user because of the testimony of his former teammates and the Estate’s generalized evidence that Bias was not a drug user did not contradict the more specific testimony of the teammates. The estate provided passed drug tests, but these only show that Bias did not use drugs in the periods the tests were administered. • Bias would not have been insured anyways because insurance inquire about drug use before issuing a policy, and if Bias would have lied that misrepresentation would have rendered any policy void. • The Estate argued that not all insurance companies ask about drug use before issuing a policy, but did not offer any evidence that a company such as this existed at the time • For the Reebok contract, neither the language of the representation agreement between Bias and Advantage, nor any other evidence could support a finding that the Ds breached any duty to Bias by failing to push to obtain a signed contract on June 18, 1986 • Even if Ds were under some duty to try to sign a contract as quickly as possible, the Estate has offered no evidence to rebut the Ds’ showing that an endorsement contract cannot be negotiated, drafted, and signed in a single day • We affirm the order of the District court’s granting to the Ds sum. Judg, with respect to the estate claims, and we do not address the district court’s order with respect to the D’s counterclaim
