Essay 2123

Question 1

What is a Rule 37(a) order to compel?

Answer 1

Orders a noncompliant party to comply with a discovery request.

FRCP 37(a)

Question 2

What can a party compel another party to do under Rule 37(a)?

Answer 2

a. Answer questions in a deposition
b. If a corporate defendant → designate an individual for purposes of deposition
c. Answer an interrogatory
d. Produce documents or permit inspection of documents

FRCP 37(a)(3)(B)

Question 3

What is the prerequisite to filing a motion to compel?

Answer 3

Certification that movant made a good faith attempt to confer with the person resisting discovery to see if judicial intervention can be avoided.

FRCP 37(a)(1)

Question 4

[Essay Issue & Rule Statement]

Motion to Compel.

Answer 4

If a party fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.

Question 5

If a motion to compel succeeds, what is the result?

Answer 5

a. Other party will be ordered to comply
b. Court may impose sanctions
c. Moving party may be entitled to attorney’s fees

FRCP 37(a)(5)

Question 6

What sanctions can be imposed if a party fails to comply with a discovery order?

Answer 6

The court may:

a. Direct that the information at issue must be VIEWED IN THE WAY THAT THE PREVAILING PARTY ASSERTS (ie. if X requests emails that are meant to show evidence of fraud, and Y does not comply with a court order ordering production, the court will assume that the emails actually showed evidence of fraud).
b. PROHIBIT the disobedient party from SUPPORTING or OPPOSING CLAIMS that the evidence related to
c. STRIKE pleadings, STAY proceedings until the order is obeyed, DISMISS the action, or render a DEFAULT JUDGMENT against the disobedient party
d. Hold the disobedient party in contempt

FRCP 37(b)

Question 7

If a motion to compel is denied, what is the effect?

Answer 7

The court may issue a protective order barring discovery of the relevant information.

In addition, the moving party may be required to pay attorney’s fees to the other side unless motion was substantially justified.

FRCP 37(a)(5)(B)

Question 8

Discovery

• GR
• Test

Answer 8

Discovery

Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. Admissibility of the evidence at trial does not matter for determining relevance for purposes of discovery.

The test is whether the information sought is relevant to any party’s claim or defense. Information may be discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence.

Question 9

Discovery Challenged by D

Answer 9

When discovery is challenged, the court must weigh the party’s interests in seeking discovery against the privacy interests of the party resisting discovery.

Question 10

Is privileged information discoverable?

Answer 10

Privileged information is not discoverable.

Question 11

D doctor refuses to answer questions on the grounds of privilege.

Answer 11

Privileged information is not discoverable. The patient-physician privilege protects confidential communications for medical treatment between a patient and physician. However, this privilege belongs to the patient, so the Doctor cannot raise this privilege to bar discovery.

Question 12

Relation Back Doctrine—New Claim

Answer 12

An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading. This may be important for the purposes of complying with the applicable statute of limitations.

Question 13

Relation Back Doctrine—New Party

Answer 13

Relation Back Doctrine—New Party

If the amendment changes the party, then it will relate back to the date of the original pleading if: (i) it asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading; (ii) within 90 days after the filing of the original complaint, the party to be brought in by amendment receives notice of the action such that he will not be prejudiced in defending on the merits; and (iii) the party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 14

Summary Judgment

Answer 14

A motion for summary judgment shall be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Question 15

Claim Preclusion (Res Judicata)

Answer 15

The doctrine of claim preclusion (res judicata) provides that a valid, final judgment on the merits of an action precludes sufficiently identical parties from successive litigation of an identical claim in a subsequent action.

1. Valid, Final Judgment on the Merits

The judgment must be valid, meaning that the court had both personal and subject matter jurisdiction, and the defendant had proper notice and an opportunity to be heard. The judgment must also be final, meaning that there is nothing further for the court to do but order entry of judgment. The decision must have been made in consideration of the merits of the claim or defense. A judgment on the merits includes judgment entered after a full trial.

2. Identical Causes of Action

The original and later-filed causes of action must be sufficiently identical to be barred under claim preclusion.

3. Identical Parties

For claim preclusion to apply, the claimant and the defendant must be the same in both the original action and the subsequently filed action.

Question 16

Issue Preclusion (Collateral Estoppel)

Issue preclusion precludes the relitigation of issues of fact or law that have already been necessarily determined as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Thus, the “offensive” use of collateral estoppel is permitted.

Answer 16

Issue preclusion precludes the relitigation of issues of fact or law that have already been necessarily determined as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Thus, the “offensive” use of collateral estoppel is permitted.

1. Same Issue

The issue sought to be precluded must be the same as that involved in the prior action. The facts relevant to the particular issue and the applicable law must be identical in order for issue preclusion to apply.

2. Actually Litigated & Final, Valid Judgment

The issue must have been actually litigated in the prior action in order for issue preclusion to apply. In addition, the issue must have been determined by a valid and binding final judgment.

3. Essential to Judgment

The determination of the issue must have been essential to the prior judgment. Generally, an issue that constitutes a necessary component of the decision reached will be considered essential to the judgment.