Discovery/SumJud/TBJ/Motions

Question 1

Discovery: Main Question

Answer 1

Is this document discoverable? Should a federal judge compel discovery?

Question 2

Discovery: Generally

Answer 2

Method + Scope = Discovery

1. The Method must be proper
2. The Material sought must be within the proper scope of discovery

Question 3

Discovery: Automatic Prompt Disclosure 4 things to disclose

Answer 3

The federal judge MUST compel the parties to meet in a discovery conference and engage in automatic prompt disclosure.

The parties must exchange 4 kinds of information. (1) All helpful witnesses, (2) All helpful documents including electronic, (3) Damages computation (4) Relevant insurance coverage.

Parties may not engage in any other discovery method before APD.
{1. Witnesses 2. Documents 3. Damages 4. Insurance}

Question 4

Discovery: Presumptive Limits on 5 traditional discovery devices; Interrogatories

Answer 4

Interrogatories: No more than 25 interrogatories including subparts may be served on a party. In responding to an interrogatory, the party may produce a business record from which the answer can be ascertained.

Request for the Production of Documents: Documents include electronically stored information (ESI).

• In the context of ESI, proportionality is relevant because it can be hard to produce. (Proportionality: Benefits of discovery outweigh the cost)

Question 5

Discovery: Presumptive Limits on 5 traditional discovery devices; Request for the Production of Documents

Answer 5

Request for the Production of Documents: Documents include electronically stored information (ESI).

• In the context of ESI, proportionality is relevant because it can be hard to produce. (Proportionality: Benefits of discovery outweigh the cost)

Question 6

Discovery: Presumptive Limits on 5 traditional discovery devices; Deposition

Answer 6

10 per side; 7 hours each.

You can depose non-parties. (the only device that can be used on non-parties)

Question 7

Discovery: Presumptive Limits on 5 traditional discovery devices; Request for physical/mental examination

Answer 7

Only device that requires a court order.

Must make showing that the condition to be examined is (1) in controversy (relevant and in dispute), (2) good cause shown for examination (no less intrusive way)

Once deposing the examiner, the party waives privilege/privacy regarding every other examination for a like condition

Question 8

Discovery: Duty to Supplement

Answer 8

Ongoing automatic to update/supplement prior responses with new information.

Question 9

Discovery: Presumptive Limits on 5 traditional discovery devices; Request to Admit

Answer 9

Request that party admit either (1) documents are genuine, (2) Facts are true

A request that is not denied within 30 days of service is deemed to be admitted; self-executing sanction.

Question 10

Discovery: (Method) Disclosure of testifying witnesses

Answer 10

All testifying experts and their reports must be disclosed 90 days before trial. All testifying non-witnesses must be disclosed 30 days before trial.

Question 11

Discovery: Scope Generally

Answer 11

(1) Relevant, (2) proportionate, (3) not privileged

Need not be admissible at trial.

Question 12

Discovery: Scope; Privilege (Work Product)

Answer 12

Work product privilege: Any material that is prepared for litigation and not in the ordinary course of business.

1. The mental impression of an attorney in any form, that material is absolutely privileged.
2. All other work product prepared for litigation CAN be discovered, but only if the other side makes a showing of substantial need such that it would suffer undue hardship. (needed and cannot be gotten any other way)

(3) Material that is privileged is not discoverable.

Question 13

Discovery: Scope; Privilege (Attorney-Client) 5 elements

Answer 13

Attorney Client privilege:
1. Attorney: Member of bar/agent
2. Client: Any person consulting with an attorney for the purpose of obtaining legal advice
3. Communication between attorney-client (the communication itself is privileged, but not the facts communicated)
4. Made in confidence without the presence of third parties
5. Not disclosed to any other party after the fact

• Who is a client if it’s a corporation?: Any person employed by the client who obtains information in the scope of their employment and does communicate the information to a lawyer for the purpose of obtaining legal advice.
• Inadvertent Disclosure (“claw-back” provision): Inadvertently disclosed documents may be taken back.

(3) Material that is privileged is not discoverable.

Question 14

Discovery Sanction Motion

Answer 14

Motion to Compel Disclosure: Failure to follow can get a contempt of court citation or an automatic judgment against you.

Question 15

Summary Judgement: Time frame

Answer 15

May be made up to 30 days after the close of discovery

Question 16

Summary Judgement: Standard to grant/deny (Generally + 3 substandards)

Answer 16

A court will grant a motion for summary judgment if there is no longer any genuine dispute of material fact, such that judgment becomes proper as a matter of law.

(1) You may present affirmative matter that negates an essential element of the Plaintiff’s cause of action.

(2) You may show the court that there is an ABSENCE of evidence on an essential element of P’s COA.
- The burden then automatically transfers to the non-moving party to demonstrate that there is a legally sufficient evidentiary basis from which a reasonable jury could find in its favor by the relevant burden of proof at trial.

(3) If the P alleges that D engaged in irrational economic behavior, P must produce evidence that is direct evidence of that behavior, or else will lose the motion for summary judgment.

Question 17

Is there a right to TBJ?:

Answer 17

Demand + Money = TBJ

Question 18

TBJ: Demanding

Answer 18

(1) Must be demanded in writing in a timely fashion (in complaint or within 14 days after service if P) (in answer or within 14 days after its service) (REALLY 14 days within the last pleading or complaint which provides a trial by jury right) The last claim which contains a response to a jury triable issue.

Question 19

TBJ: The Right (2 ways)

Answer 19

(1) Suing in federal court based on a federal statute
(2) Right exists if the 7th amendment gives that right

Question 20

TBJ: The Seventh Amendment

Answer 20

Gives the right to TBJ only if the claim seeks primarily monetary damages. (monetary loss compensation, but not unjust enrichment) Unless Congress has assigned to an administrative law judge the power to engage in fact finding as part of a comprehensive congressional scheme.

Question 21

Motions: 2 step Analysis

Answer 21

1. Timeframe
2. Standard to grant/deny

Question 22

Motions: Judgment as a Matter of Law

Answer 22

1. After the other side has been heard, a motion for JML can be filed and will be granted if
2. There is a legally insufficient evidentiary basis from which a reasonable jury could find in favor of the non-moving party.

Question 23

Motions: A renewed motion for JML

Answer 23

1. Within 28 days of the judgment a party may make a renewed motion for JML if it made an original motion for JML before the jury deliberated
2. If there was a legally insufficient evidentiary basis from which a reasonable jury could have found in favor of the non-moving party

Question 24

Motions: Motion for a New Trial

Answer 24

1. Within 28 days of the judgment, a party may make a motion for a new trial.
2. The motion will be granted in the court’s discretion for either (1) errors at trial that affected the party’s substantial trial rights, or (2) the verdict was merely against the manifest weight of the evidence.

Question 25

Motions: Motion for Relief from a Judgment

Answer 25

1. Up to 1 year after the judgment, one may file a motion for relief from that judgment if they can show 4 things.

(M.E.N.D)
2. That there was (1) merit to your claim or defense, (2) equity demands relief [fraud or perjury tainting the judgment], (3) new facts have come to life that cast doubt on the judgment, and (4) despite due diligence, those new facts could not be discovered until it was too late.